50 So. 46 | Ala. | 1909
This was an action upon an express contract, to which were joined the common counts. The
“August 4, 1906.
“Mr. Sidney Ullman, City — Dear Sir: We will make and deliver blocks as per our agreement on lot opposite Glen Iris gate for 23 cents per block. We will also make and deliver special designs of Avater tables and sills, as per retail, for 10 cents per lineal foot above our previous bid. The blocks are to be plain and faced with a three to one mixture. Will also lay the block up, beginning at water table, for 30 cents per square foot, over all, counting Avater table in measurement. A cost of one cent per superficial foot will be added for pointing these blocks about our previous bid. Hoping to be faAmred with this valued order, we remain, very truly.
“An additional charge of (1.)c one cent is to he allowed for projected corner blocks.
“Oliver-Watts Const. !Co.,
“By W. G. Oliver.
“August 6, 1.906.
“The above bid is accepted, except in matter of water table, which is to be stock pattern, at regular price of balance of blocks. It is understood that the price of 30c per square foot includes all work except pointing up and price of sills.
“For P. F". Walstrom.
“By Sidney M. Ullman, Architect.”
To the complaint defendant filed six pleas, which set up a breach of the contract by plaintiff in furnishing bad blocks and in failure to properly construct. Three
It is sufficient to say that the evidence of each partv tended to prove the averments of each of the respective-pleadings. At common law this would have been a very-short and simple issue, though the pleadings are copious ; that is, the one (and that only) raised by the rejoinders.. But under our statute, both parties being allowed to plead double, the pleadings are very lengthy and often, complicated, involving many issues, most of which are-frequently immaterial. The present record is a splendid object lesson to illustrate the evils of double pleading. Here the defendant denies -the complaint, then confesses, it -and avoids it. The plaintiff in turn denies the pleas, and confesses and avoids. Defendant, asserting the-right of a woman determined on having the last say, rejoins by denying the replications, then admits and avoids. The plaintiff then asserts his right of opening- and closing the pleadings, as well as the argument, so-he rebuts, by denying the rejoinder, then admitting it: and avoiding it. And thus the game of “tag” goes on,, with each trying to trip the other, until the whole gamut of pleadings is run, or the nomenclature of the ancient pleader, the ingenuity of the modern, or the patience of' the trial court is exhausted. What is said above is not intended by the writer as a criticism of the conduct of' this particular trial, but to illustrate the evils of the-statutory system of pleadings.
The contract speaks for itself, and we think the language is too plain for argument; that it cannot be classed as a contract for the sale of a mere chattel. It is true that a part of it includes necessarily the sale or furnishing of concrete block, the building materials, by the appellee for the appellant; but it also contemplates the making of the blocks themselves of a particular kind of material, and the construction of the walls of appellant’s house out of such blocks. So it is as strictly and certainly a builder’s contract as if appellee had contracted to build the whole house and furnish the materials according to given stipulations; but, of course, the liability of the contractor, who undertakes to build a part only of a structure, is not, in all things and to the full extent, that of a contractor who undertakes to build the whole. The liability of each is measured and limited by
The trial court, at the request of the plaintiff (appellee here), gave each of the folloAving charges:
“I charge you that the defendant is not entitled to recover in this case, if you believe all the evidence.”
“If the defendant accepted the work, or moved into the house and used the building, the defendant Avould be liable for the actual value of the work.”
“The defendant is bound to pay the reasonable value of the work, if he accepted it and used it, whether it- was in conformity to the contract or not.”
“I charge you that if the plaintiff did the Avork on certain walls of the defendant’s house, but the work was not such Avork as had been agreed oü in the contract, then the defendant is bound to pay only the reasonable value of such Avork, if it was used and accepted by him, unless it appears that'the work had been changed by direction of himself or agent.”
“I charge you that if, Avhen the plaintiff finished the cement block Avails, as they did finish them, Avhether it Avas in accordance Avith their contract or not,* the defendant had the right to have the walls in'the condition he contracted for them, and to spend money, if necessary, to put them-iii that condition; defendant accepted*614 the walls and. used them, and make no expenditures to have them placed in the condition for, then the defendant must pay the reasonable value of the walls when he accepted them.”
The trial court refused to give, at the written request of th'e defendant, the following charge:
“I charge you, gentlemen of the jury, that a mere naked occupancy or use of a building erected on the land of the- owner does not itself amount to an acceptance of the work as done in compliance with the contract, unless the possession and use be coupled with some act or some language from which acceptance or acquiescence maybe reasonably inferred. The owner is not bound to remove the building or abstain from using it.” ■ •
The" ruling and action of the court as to some of these charges, if not as to all, was clearly error, under the evidence and pleadings as shown by this record. We agree with counsel for appellee that the case of Davis v. Badders et al., 95 Ala. 348, 10 South. 425, is in point, and that many of the rules of. law therein announced are applicable to the case at bar; but we cannot go with counsel to the point of holding that" the case supports his contention, or supports the ruling of the trial- court as to all the charges above set out.
As to the questions involved in these charges and applicable to this case, Justice Clopton expressly says -that they are settled in this state, first, in the case of Thomas v. Ellis, 4 Ala. 108, and subsequently in the cases of Merriweather v. Taylor, 15 Ala. 735, English v. Wilson, 34 Ala. 201, and Bell v. Teague, 85 Ala. 211, 3 South 861, which cases have been subsequently followed, in a long line of unbroken decisions, down to and including that in the case of Aarnes v. Windham, 137 Ala. 513, 34 South 816. This last case was one very much like the
While the court in this case did not give the affirmative charge for the plaintiff, it instructed the jury that “the defendant was not entitled to recover if they be-lived all the evidence,” Avhich was in effect the same. It Is true that the charge in the former case fixed the amount of the verdict, but the decision was not based upon that ground. Justice Haralson, after quoting at length -from the opinion in the Davis-Badders Case, Supra, and from other authorities' upon which it is based says: “Under the plea of the general issue the defendant was entitled to recoup the damages caused by the workman's breach of contract in-the performance of the work. - As to Avhat constitutes acceptance of Avork done, it is held that it may be express or implied from the conduct of the employer; that the mere naked occupancy or use of a building erected on the land of the-owner does not, however, warrant an inference of acceptance of. the work as done in compliance with the contract, unless the possession and use be coupled with some act or some language from which acceptance-or acquiescence-may be reasonably inferred, since the OAvner cannot divest himself of possession without surrendering a portion of his freehold; that the OAvner is not bound to remove the building, or abstain from using it, since, being attached to his iand, it becomes his property; and that part payment is not an acceptance., but only an acquiescence to the extent of the payment. — 6 Cyc. 67-69. Whether a contract has been performed according to the terms, and
If what is said above was the law in the case then under consideration, it is certainly trae and applicable in the-case at bar. The contract sued oh in that case is like that here in judgment, the evidence in that case was in nearly every particular like the evidence in this, and the trial court in that case had charged the jury to the same effect as in the case at bar. If the defendant in each of those cases was entitled to recoup under the general issue for plaintiff’s failure to fully perform, and was not precluded because the defendant had taken possession of the house and occupied it, and thus received some ben. efit, then certainly this defendant should not, as a matter of law, be denied that right when he not only pleaded the general issue, but also pleaded recoupment specially.
If the j ary had been allowed so to do in this case, under the evidence they might have found that the defendant had suffered damages on account of plaintiff’s failure to perform the contract fully, and that the amount thereof was in excess of the balance due for the reasonable value of the materials furnished and work performed. in which event, under the plea of recoupment, defendant would have been entitled to a judgment for the excess. They might have- found, under the issues and evidence in this case that acceptance of the work (if it was accepted by defendant) was conditioned upon or induced by plaintiff’s promise (if they found it made such) that it would remedy the defects and make the job in all respects according to the contract, or it Nas
The decisions of this court above referred to, and text-book writers on the subjects and questions involved in this case, have made the law practically certain. As to building contracts, the contractor may sue on the contract when he can show that he has substantially performed his part, except as he may allege and prove a legal excuse of being prevented by the act of the other party, of God, or of the law. A substantial performance or compliance is in such cases considered sufficient. It would be illogical and unjust to allow a recovery of the contract price, when suing on the contract, without proof of performance on the part of the plaintiff; and partial performance is not sufficient. The undertaking must be performed fully. This is usually a coudition precedent. In order to recover on a partial performance, the contractor may sue on a quantum meruit where the other party has permitted him, without objection or complaint, to do the work, but not in strict accordance with the contract, and has accepted the work and voluntarily appropriated his labor, or the result thereof, and derived a benefit therefrom. These are rights of the builder or contractor.
The owner of the building or structure to be made or erected also has correlative rights in the matter. If a contractor has failed to perform his part of the contract, or has performed it in a different m'anner. from that provided by the contract, or abandons the work's, the
As said and quoted above, mere occupancy by the owner of the building erected on his own land, without more, does not justify the conclusion, or warrant the inference, of acceptance of the work as done in compliance with the contract. Nor do part payment and occupancy, without more, justify such inference or conclusion; nor is he precluded, by such occupancy, part payment, or liability on a quantum meruit, from showing defects in the performance and recovering damages therefor. An unauthorized or improper acceptance or approval of the work by an architect or superintendent will not be a Avaiver of the owner’s right to recover damages of the contractor for failure to fully perform — 6 Cyc. 70; authorities supra. Where a builder or contractor relies
On trial upon such issues, and under such evidence as appears from this record, it is a question for the jury, under proper instruction from the court, whether the contract has been substantially performed according to its terms, and the nature of the work, whether the building was accepted or not, whether the work was done in a reasonable time and with reasonable diligence, whether the builder is liable to the owner in damages for breaches of the contract, if there be a breach by him, and, if so liable, the amount thereof. The authorities above cited are uniform in holding that an owner, who has sustained injury by reason of a breach of the building contract on the part of .the builder, may recover in a. separate action against the builder,.or if sued by the builder .on a quantum meruit, that-he may recoup or set off such damages as are the proximate result of the breach, the amount of which, as above stated, being the difference between the value of the work furnished or. building constructed and the value of that contracted for, or the reasonable value of the extra work occasioned the owner in making the building conform to the contract stipulations. — 6 Cyc. 113; Suth. on Damages, §§ 709-711.
What is said above in this opinion is not intended to conflict with the case of Carbon Hill Co. v. Cunningham, 153 Ala. 575, 44 South. 1016, and the cases cited; but it is in line with them. It was manifest error in the trial court to give and refuse the charges set out above.
Reversed and remanded.