Alabama Trunk & Luggage Co. v. Hauer

• Decision Date: 22 April 1926
• Docket Number: 6 Div. 631
• Citation: 214 Ala. 473,108 So. 339
• Court: Alabama Supreme Court
• Parties: ALABAMA TRUNK & LUGGAGE CO. v. HAUER.

108 So. 339

214 Ala. 473

ALABAMA TRUNK & LUGGAGE CO. v. HAUER.

6 Div. 631

Supreme Court of Alabama

April 22, 1926

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action by Kenneth Hauer, doing business under name and style of the Howard System, against the Alabama Trunk & Luggage Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded.

Vassar L. Allen, of Birmingham, for appellant.

Coleman Coleman, Spain & Stewart, and F.W. Davies, all of Birmingham for appellee.

GARDNER J.

Appellee recovered judgment against appellant in this action for breach of contract, and also common counts for work and labor done.

The contract was for the erection of 20 advertising signs along the principal public highways leading into the city of Birmingham, extending over a period of 12 months, with the stipulation for a replacement of any sign by plaintiff in case of destruction thereof. The compensation was to be $40 per month for 12 months from the date of erection. The contract was procured for plaintiff by the agent Peeper, and defendant, before signing, required to be added to the contract the words "privilege of selecting seven locations." Defendant insisted there had been a breach of the contract, in that they were not given the proper opportunity to make these seven selections of locations, and that the contract had not in other respects been complied with as to reasonable location and proper maintenance. Of course, without a substantial compliance with the requirements of the contract on plaintiff's part, there could be no recovery on the contract, but, if the work was performed and voluntarily accepted by defendant, a recovery may be rested upon the common counts as on a quantum meruit. Hartsell v. Turner, 196 Ala. 299, 71 So. 658; Russell v. Bush, 196 Ala. 309, 71 So. 397; Walstrom v. Oliver-Watts Const. Co., 161 Ala. 608 50 So. 46; Catanzano v. Jackson, 198 Ala. 302, 73 So. 510; 13 C.J. pp. 691, 692.

The issues thus presented were properly submitted, under the evidence, for the jury's determination.

Plaintiff, while a witness for himself, identified a photograph as that of one of the signs. He was entirely familiar with the signs, and testified that the photograph of the sign was an accurate picture thereof. The photograph was then offered in evidence by plaintiff, over defendant's objection. The insistence seems to be that it was inadmissible, for the reason the witness did not take the photograph or see it taken. But he was thoroughly familiar with the signs, and identified the photograph as a correct representation thereof. There was no error in permitting its introduction in evidence. 10 R.C.L. pp. 1158, 1159; Greenleaf on Evidence (16th Ed.) § 439h; K.C., etc., R.R. Co. v. Smith, 90 Ala. 25, 8 So. 43, 24 Am.St.Rep. 753; Sanders v. State, 202 Ala. 37, 79 So. 375; Luke v. Calhoun County, 52 Ala. 115; Carlson v. Benton, 66 Neb. 486, 92 N.W. 600, 1 Ann.Cas. 159, and note. This witness also testified as to the locations of the signs on the highways leading into the city, and in doing so refreshed his recollection by reference to a list thereof. Defendant objected to the use of this list or memorandum, as it was not one made by the witness. It appears the list was sent to the witness; that he thereafter inspected the signs as thus located, and checked the list or memorandum so furnished him, making thereon his own check marks, verifying the correctness thereof, and constituting in this manner the memorandum as his own. The memorandum itself was not offered in evidence, but merely used by the witness to refresh his recollection as to the locations so checked off on his inspections. The trial court committed no error in thus permitting the use of the memorandum. Bolling v. Fannin, 97 Ala. 619, 12 So. 59; Acklen v. Hickman, 63 Ala. 494, 35 Am.Rep. 54; Birmingham Ry. L. & P. Co. v. Seaborn,

168 Ala. 658, 53 So. 241; Denson v. Acker, 201 Ala. 300, 78 So. 76; Polytinsky v. Sharpe, 211 Ala. 510, 100 So. 750; Oden-Elliott Lbr. Co. v. Daniel Gaddis Lbr. Co., 210 Ala. 582, 98 So. 730; Warten v. Black, 195 Ala. 93, 70 So. 758.

The matters of evidence constituting assignments of error 3, 4, 5, and 6 were subsequently testified to in substance by the witness, and reversible error is not made to appear.

The contract here in question was procured, it seems, by one Peeper, representing the plaintiff, and on this contract were added the words, at defendant's suggestion, "privilege of selecting seven locations." It is defendant's contention that the manner of this selection should be by personal inspection or by accompanying plaintiff's agent when the signs were placed, and that selection by letter was not practical or contemplated. The contract is silent as to the manner of such selection or in what way the privilege is to be exercised, and it is not a matter concerning which the law supplies any deficiencies, such as involved in Miller Brothers v. Direct Lbr. Co., 207 Ala. 338, 92 So. 473, and Motor Co. v. Johnson, 210 Ala. 38, 97 So. 49. See, also, 22 C.J. pp. 1075, 1076.

It has therefore been held that oral proof was admissible when offered not to contradict or vary a written contract, but simply to "explain how it is to be carried out." 22 C.J. 1144. An illustration of the application of this latter rule is found in L. & N.R.R. Co. v. Duncan & Orr, 137 Ala. 446, 34 So. 988. There the shipment of stock could have been routed over several connecting carriers'...