Andrews v. Tucker

• Court: Supreme Court of Alabama
• Writing for the Court: SHARPE, J.
• Citation: 29 So. 34,127 Ala. 602
• Parties: ANDREWS ET AL. v. TUCKER ET AL.
• Decision Date: 20 November 1900

29 So. 34

127 Ala. 602

ANDREWS ET AL.
v.
TUCKER ET AL.

Supreme Court of Alabama

November 20, 1900

Appeal from circuit court, Chambers county; W. D. Denson, Judge.

Action by J. A. and L. C. Tucker against M. A. Andrews, T. H. Allen, and J. D. Moorefield. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

This action was brought by the appellees, J. A. and L. C. Tucker, against M. A. Andrews, T. H. Allen, and J. D. Moorefield, composing the firm of Andrews, Allen & Moorefield. The complaint, as originally filled, contained three counts. The first count was for $150 due for work and labor done for the defendants by the plaintiffs on October 15, 1896. The second count was on an account stated on October 15, 1898. The third count was for $150 due for work and labor done under a contract between plaintiffs and defendants. The demurrer of the defendants to the third count was sustained. To the first and second counts of the complaint the defendants pleaded the general issue and several special pleas. To the second plea the defendants set up that the sum sued for was for work and labor done under a contract made between the plaintiffs and the defendants in writing. This contract was set out in extenso in the second plea, and was, in substance, as follows: The plaintiffs agreed, for a certain express consideration, to grade for the defendants the roadbed for the main and side tracks of the Lafayette Railway, as surveyed and located by J. L. Cowan, "commencing at a point above Oak Bowery, where Andrews, Allen & Moorefield left off grading; thence along said railway, as surveyed, to the terminal point, one mile from starting point, No. 508; thence to commence work at station No. 895, to grade four miles, more or less, according to the survey and profile of said Cowan and the specifications thereto attached, at the rate of 8 cents per cubic yard of material moved, roadbed measurement." The grading was agreed to be done according to the specifications attached to the contract, and the plaintiffs agreed to finish and complete the grading as specified by the 1st day of March, 1896, "unless prevented by the weather." The defendants agreed "to deliver all sewer piping needed at any point along the line when they are to be used." It was stipulated in said contract that the defendants were to pay the plaintiffs at stated intervals 80 per cent. of the gross amount due for work done at the end of each of such intervals, and, after the five miles agreed was completed according to the specifications, the 20 per cent. reserve, being the balance due on said five miles of grading, should be paid to the plaintiffs. It was further stipulated: "Said work to be performed as directed by the engineer, and the amount due at any time to be determined by his estimates; and it is hereby stipulated and agreed between the parties to this contract that, in the event the party of the second part fails to comply with the stipulations herein required of them in the grading of said roadbed of said railway, then the party of the first part [the defendants] may, at its option, revoke and annul this contract, and take charge of said work, and relet the same to others; and the amount due the said party of the first part shall be forfeited to said party of the first part." The specifications for the grading, as prepared by the engineer, were attached to the contract. Among other provisions contained in said specifications, was the following: "Before final estimate shall be made, the grading, as specified, must be thoroughly inspected by the engineer and president of said Lafayette Railway Company, and accepted by them." After setting out the contract and specifications attached thereto, the second plea averred that the work and labor done by the plaintiffs for the defendants, and the only account existing between them, was based upon said contract, and that before the commencement of the present suit the defendants had fully paid plaintiffs 80 per cent. of the gross amount of said contract, as provided therein, and that plaintiffs have failed and refused to perform their part of the contract in grading the five miles of said road according to the terms thereof and the specifications thereto attached. In the third plea the defendants, after referring to said contract, and making it a part of said plea, averred that the plaintiffs did not perform the work as contracted for, as directed by the engineer; that they did not lower the excavations and raise the embankments required for the roadbed to the grade established by the engineer, nor did they construct the cuts as wide as the specifications demanded; and that on account of said failure the defendants revoked and annulled the said contract, and took charge of the work; and that, therefore, the amount, if any, due the plaintiffs, was forfeited to the defendants under the terms of said contract. In the fourth plea the defendants set up that the amount sued for in this action was not determined by the engineer prior to the commencement of the suit. Plea numbered 4 1/2, after referring to and making the contract sued on in the second plea a part thereof, averred that the plaintiff did not finish and complete all of the grading as provided for in said contract, and on account of said failure the defendants revoked and annulled said contract, and relet a part of the same work to others. The fifth plea, after referring to the contract set out in the second plea, averred that the grading specified in said contract and specifications had never been accepted by the engineer and president of the Lafayette Railway Company. In the sixth plea the defendants set up payment of the claim sued on.

The plaintiffs took issue upon the pleas 1, 3, 4 1/2, and 6. To the second plea the plaintiffs filed a special replication, in which they averred that, while it was true the plaintiffs did not complete the entire five miles of grading, they did complete about three miles or more of said grading, for which they received 80 per cent. of the gross amount due for said work, and were released by the defendants from the completion of the remainder of said grading; and that the defendants agreed, at the time of so releasing them, to pay them the 20 per cent. reserve, as provided in said contract, on the amount of work and labor already performed, which amounted to $202, of which amount the defendants have, since the time of said agreement, paid the plaintiffs the sum of $57. To the fourth and fifth pleas the plaintiffs filed special replications, in which they set up that, after completing about three miles of the grading contracted for, said contract between the plaintiffs and the defendants was terminated at the request of the defendants, and that at the termination of said contract the defendants agreed to pay the plaintiffs the 20 per cent. reserve for work and labor already performed by them without further compliance by the plaintiffs with the terms of said contract, which said reserve amounted to the sum of $202; and that the defendants have since said agreement paid on said sum $57, leaving a balance of $145, with interest, due from defendants to plaintiffs. Issue was joined upon these replications.

Upon the trial of the cause the plaintiffs introduced in evidence the contract which is set out in the second plea....