Aarnes v. Windham

• Decision Date: 16 June 1903
• Citation: 137 Ala. 513,34 So. 816
• Parties: AARNES v. WINDHAM.
• Court: Alabama Supreme Court

34 So. 816

137 Ala. 513

AARNES v. WINDHAM.

Supreme Court of Alabama

June 16, 1903

Appeal from Circuit Court, Mobile County; Wm. S. Anderson, Judge.

Action by Robert Windham against Annie C. Aarnes. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Upon the introduction of all the evidence, the court at the request of the plaintiff gave to the jury the following written charge: "The court charges the jury that if they believe the undisputed evidence in this cause, the plaintiff is entitled to recover four hundred and ninety and 50/100 dollars ($490.50) with interest, as a balance due under the contract, and in addition to this, the reasonable value of whatever work he may have done for the defendant at her instance and request, either in person or through an authorized agent, and whether her request was expressed or implied."

The defendant duly excepted to the court's refusal to give this charge, and also separately excepted to the court's refusal to give each of the following charges requested by her: "(2) The court charges the jury that they cannot find against the defendant upon the count upon the express contract, unless plaintiff has proven to their reasonable satisfaction that he has complied with his part of such contract. (3) If the jury believe from the evidence that when defendant took possession of the house, it was still unfinished, and that she took such possession under an agreement with plaintiff, express or reasonably to be implied from what passed between herself and him, that he should go on and put it in the condition stipulated by the contract between them, then he cannot recover upon the count of the complaint upon the express contract, unless the jury reasonably believe from the evidence that he did go on and put the house in the condition so stipulated." "(6) The court charges the jury that if the evidence reasonably satisfies them that there was an express contract between plaintiff and defendant for the construction of the house then he is not entitled to recover under the common counts for money due on account, and for merchandise, goods and chattels sold, and for work and labor done, or upon any one of them, except what may be due, if anything, for the extra work done and extra material furnished by him, unless the evidence also reasonably satisfies the jury that he complied with the terms of the contract, or that defendant accepted the house as constructed. The burden of proving one of these two facts rests upon the plaintiff, and unless he has done so to the reasonable satisfaction of the jury, they must find for the defendant, except as to plaintiff's claim for extra work done and extra material furnished." "(8) The court charges the jury that, except as to his claim for extra work done and extra material furnished, plaintiff is not entitled to recover upon any one of the common counts for money due on account, and for merchandise, goods and chattels sold, and for work and labor done, unless the evidence reasonably satisfies their minds, either that he complied with the undertakings of the contract on his part, or that defendant accepted the house as constructed. The burden of proving one of these facts to the reasonable satisfaction of the jury is upon plaintiff. If the evidence does not so satisfy their minds that he complied with his part of the contract, but they find that defendant nevertheless accepted the house as constructed, then he is entitled to recover for work done and for the material furnished in the construction of the house, outside such extra work and extra material only their actual value, less payments thereon made him, and interest on such excess from the time the same became due."

R. H. &amp N. R. Clarke, for appellant.

Gregory L. & H. T. Smith, for appellee.

HARALSON J.

The first count in the complaint is upon a written contract between the plaintiff and defendant, whereby the former agreed with the latter to erect on her land a building for her, at a specified price, the payment to be made at certain times in specified amounts as the work progressed. All the payments were made except the last, which the suit is brought to recover. It avers, that the plaintiff complied with all the provisions of the contract on his part, and defendant failed to comply with its terms on her part, in that she failed to pay the sum of $500, stipulated to be paid when the building was completed. The common counts for the recovery of $591.50 were added, for merchandise, goods and chattels sold by plaintiff to defendant, on, to wit, the 1st of July, 1900 and for a like sum due and payable on that date, for work and labor done by plaintiff for de...