Newell Contracting Co. v. Glenn

• Decision Date: 18 March 1926
• Docket Number: 3 Div. 747
• Citation: 107 So. 801,214 Ala. 282
• Parties: NEWELL CONTRACTING CO. v. GLENN.
• Court: Alabama Supreme Court

107 So. 801

214 Ala. 282

NEWELL CONTRACTING CO. v. GLENN.

3 Div. 747

Supreme Court of Alabama

March 18, 1926

Appeal from Circuit Court, Lowndes County; A.E. Gamble, Judge.

Action by J.R. Glenn against the Newell Contracting Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.

Instruction in suit against highway contractor for work and labor that if plaintiff was employed by independent contractor defendant was not liable, held properly refused, where recovery was partially based on defendant's promise to pay plaintiff for work done for subcontractor in consideration of plaintiff's continuing work.

These charges were given for plaintiff:

"(1) The court charges the jury that, if you are reasonably satisfied from the evidence that the defendant is indebted to the plaintiff in the sum of $566.92, then your verdict will be for the plaintiff for such amount."

"(2) The court charges the jury that, if you believe from the evidence that the defendant's duly authorized agent, within the line and scope of his authority, promised the plaintiff to pay whatever amount was then due from Nixon to the plaintiff, if plaintiff would work or continue to work on said road for defendant, then that promise, if made, was for a valuable consideration and is valid."

The following requested charges were refused to defendant:

"(9) The court charges the jury that the burden is upon the plaintiff to reasonably satisfy you from the evidence that he was in the employ of Newell Contracting Company, and unless the plaintiff has sustained this burden, you cannot find for the plaintiff under either count of the complaint."

"(10) If you find from the evidence that J.E. Nixon employed plaintiff and plaintiff continued in the employment of J.E. Nixon, and you further find that J.E. Nixon was an independent contractor, then I charge you that defendant was under no contract or legal duty to pay to the plaintiff any money for work and labor performed by plaintiff for said independent contractor."

Gibson & Davis, of Birmingham, for appellant.

Foster & Foster, of Montgomery, for appellee.

SAYRE J.

Plaintiff (appellee) was unable to follow the Code form for the common count on an open account, count 1. The count as drawn was defective as specifically pointed out, and defendant's demurrer should have been sustained. Smythe v. Dothan F. & M. Co., 52 So. 398, 166 Ala. 253. But the error complained of in this connection will not be allowed to work a reversal of the judgment, for the reason that the recovery must, under the evidence, be assigned to the count for work and labor done, the second count of the complaint. The second count, and indeed the whole complaint, was defective, for that it failed to conclude, as does the form of the Code, § 9531, form 10, that the sum sued for was still unpaid, and we see no reason why this averment was omitted. But the count alleged a sum due on a date prior to suit brought, disclosed a cause of action, and the demurrer failed to point out the defect now insisted upon with that distinctness required by section 9479 of the Code. As to count 2, therefore, the ruling on demurrer cannot now be held for error.

The ruling on the demurrer to count 3, the common count for money had and received to the use of plaintiff, is now of no consequence, since the general charge against that count was given by the trial court. Central of Georgia v. Hingson, 65 So. 45, 186 Ala. 40.

Defendant's argument for error in overruling its motion for a new trial is based upon an alleged deficiency in plaintiff's evidence. No exception to this ruling is shown by the bill of exceptions. The question cannot be reviewed in this state of the record. Akin v. Chancy Bros. Co., 93 So. 408, 207 Ala. 523; Grand Bay Land Co. v. Simpson, 81 So. 548, 202 Ala. 606; Powell v. Folmar, 78 So. 47, 201 Ala. 271. We do not find that these decisions have been affected by the codification in section 6088 of the Code of 1923 of the Act of September 22, 1915, p. 722, § 1. However, there was evidence to sustain plaintiff's case and sufficient to support a recovery.

The objections taken against the charges given for plaint...