138 Ala. 348 | Ala. | 1903
The complaint in this case seeks to recover damages for an alleged breach of a bond executed by defendant as surety for certain named contractors guaranteeing the faithful performance of-all-obligations growing out of a contract made by them to repair the boiler of the steamship Hábil, belonging to the plaintiff, according to specifications embodied in said contract.
It contains two counts, (the second added by way of amendment), each of which set out the contract relied upon in haeo verba.
The contract as set forth in the first count shows a guaranty of the work to be done for six months; while in the second no such guaranty is shown. In all other respects, the contracts exhibited in each count are the same.
And the breaches of the ■ contracts are identical except that in the first a breach of this guaranty is assigned, while in the second it- is not.
The undertaking's-on-the-part-of the contractors common to both contracts alleged in each-of the counts are-: First, that the work to be done is -guaranteed to be free from leaks, etc.; Second, that -the work is to-be completed in twenty-three (23) running days, not including Sundays and legal holidays, and if not,-completed within that time, the contractors- forfeit one hundred dollars- for each day (Sundays -and -legal holidays excepted) after the time specified-: Third-; -that all material and workmanship are to be first-class in every respect, etc., etc.
The first count assigned, in addition to this one, a breach, of the guaranty against leaks, alleging the cause of the leaks, an effort on the part of contractors to remedy them, and their reappearance in less than six months from the date of the bond, etc., etc.; also, that the workmanship was not first-class, averring in what respect it was not, and that the defects had to be remedied by plaintiff at its own cost within six months after the date of the bond, etc., etc. It contained other assignments of breaches, but it is unnecessary to notice them since they were eliminated by demurrers and otherwise.
The second count, in addition to the one common to both, relied for recovery upon breaches of the guaranty against leaks and of the unskillful workmanship, omitting all reference to the six months guaranty.
Besides the general issue, a large number of special pleas were filed to each count. To many of these special'pleas demurrers were sustained. One of the defenses interposed to the first count was that the contract alleged in it had been materially altered after its execution without the knowledge or consent or ratification of the defendant. The pleas making this defense contained no averment that the alteration was made in the contract while it was in the possession or control of the plaintiff, and this was the ground of objection taken to them by demurrer, which was sustained. The theory upon which the sufficiency of the pleas are attempted to be sustained in, that the averment of material alteration after execution imports that it was done after delivery, and consequently while the contract was in the custody and possession of plaintiff. In other words, the averment of material alteration of the contract after its execution is the equivalent of an aver
Plea ten (10) to the second and third assignment as laid in the second count and plea seventeen (17) to the third assignment in the same cout are, at least, no more than the general issue, and the ruling on the demurrers to each of them' are disposed of by the principle just above announced.
The eighth (8) plea to the fourth assignment of the first count proceeds on the theory that an acceptance
Pleas twenty-two and tAventy-nine or identical. The averment in each of them is that the defendant “did not in any manner guarantee that any of the Avork done on said vessel by Thompson & Bailey Avould remain effective for six months.” If they be construed as averring that the legal 'effect of the bond Avas not a guaranty of the six months clause in the contract, this is a mere conclusion of the pleader, and they were subject to the demurrer. On the other hand, if they be construed as averring that the contract contained no such clause when'executed, then the defendant can not complain of the rulings for the reason that he had the benefit of this issue under other pleas. It is not insisted, as we understand, that they were intended to deny the execution of the bond by defendant.
The fifth plea to the first assignment of breach óf the contract in the first count Avas clearly one in confession and avoidance. It express^ admitted the breach of the contract as alleged, but undertook to avoid liability by reason of the fact that the contractors were
■. The case of Davis v. Badders et al., 95 Ala. 349, relied. upon by appellants as sustaining the sufficiency of the plea rather supports our conclusion. The case of Hutchinson v. Cullum, 23 Ala. 625 and Cornish, et al. v. Suydan, 99 Ala. 620, cited by appellant have no application. In each of those cases there Avas a novation of the original contract.
The 6th and 7th pleas to the same assignment, Avere also in confession and avoidance. The 6th plea set up that the work Avas not completed within the time specified in the contract by reason of the time spent by the contractors in waiting for the arrival of the Norwegian Veritas inspector Avhom the plaintiff had employed to come from NeAV Orleans to. examine the work. The
If the work could have been completed within the period fixed by the contract plus the additional time occasioned by the delays, it was the duty of the contractors to have completed it within that time; and if they delayed its completion beyond that period they are liable for each day in excess of it. — McGowan v. Amer. Tan Bark Co., 121 U. S. 600.
There is no merit in the contention that the court erred in refusing the defendant’s motion for a continuance after the amendment of the complaint by the addition of the second count, nor overruling its request to he allowed the statutory period within which to file pleas to this added count. This count introduced no new cause of action, and the record shows that the defendant was permitted to file and did file to its nineteen pleas, and doubtless the court would have permitted it to have filed more, had the request to do so been made,
This brings us to a consideration of the exceptions reserved to the rulings of the court, insisted upon in argument, upon the admission and exclusion of testimony. There hre only two of them. The first relates to an objection interposed by defendant to a question propounded by plaintiff, on cross examination, to witness Bailey, who was one of the contractors and who testitified, that he |made the contractfin controversy, for his firm. The question asked him was :* “If he guaranteed that the work to be done by his firm should not leak?” The objection interposed was that the contract was the best evidence. Before the court ruled on the question, the witness answered “that he did not guarantee it.” The defendant, however, moved to exclude this answer upon the ground assigned in the objection to the question. It is doubtless true that the contract was the best evidence as to whether Thompson & Bailey guaranteed that the worlc would not leak, and if the purpose of the question had been to establish the contents of the contract, the objection would have been good. But this was clearly pot the purpose cr scope of the examination. One of the chief matters in controversy between the parties was, whether the “six months’ guarantee,” which appeared in the copies of the contract delivered to the plaintiff’s agent, was inserted in them before their delivery or subsequently thereto. The witness had testified that he had positively refused to make any such guarantee at the time of entering into the con tract. He says that he was requested to make it, hut .declined to do so and that the contract was signed without the guarantee clause being filled in. The witnesses for the plaintiff deny this and assert- that the words “six months” were inserted by his consent. Witness Bailey in testifying upon the .subject undertook to show that he was familiar with the contract sued upon, and it was, of' course, permissible to test the accuracy of his knowledge and recollection of it. Would it not have been permissible to ask him for a
. The other exception is based on the ruling of the court in sustaining an objection by plaintiff to the question propounded by defendant to the witness McCartney: “Wha,t knowledge did the defendant have, if any, of any alterations which may have been made in the contract after it was executed?” This witness, who is shown to have represented the defendant corporation in the matter of the execution of the bond sued on, was permitted to testify that he had no knowledge or notice of any alteration in the contract after it was signed, and that no one had any thing to do with that part of the business of the defendant company -relating to the exceution of the bond except himself. What other agents or officers of the corporation may or may not have known about the alteration, had they told the witness of their knowledge or want of knowledge, his testimony as to what they knew or did not know would have been the barest hearsay. And confessedly the witness could not testify that a person does or does not know of the existence of a fact, without being told, when the witness himself has no knowledge of the fact.
A number of written charges were refused to the clefendant, but only two of them, numbers 1J4 and 2 are insisted upon. The insistence that charge numbered V/¿ should have been given is based solely upon the contention that the evidence, established the averments of the plea numbered U/t without dispute and beyond any adverse inferences. That plea reads: that “the contract set out. in said complaint is not the contract which was exhibited to this defendant and for the faithful performance of which said bond was given.” The evidence is without dispute that there was only one contract be
The court was under no duty to give the other charge on the principles'declared in Dorsey v. State, 134 Ala. 553, and cases there cited.
We have considered every assignment of error insisted upon in argument of appellant’s counsel, and find no error in the record. The judgment must be affirmed.
Affirmed.