Badders v. Davis

• Decision Date: 27 November 1889
• Citation: 6 So. 834,88 Ala. 367
• Parties: BADDERS ET AL. v. DAVIS ET UX.
• Court: Alabama Supreme Court

6 So. 834

88 Ala. 367

BADDERS ET AL. v. DAVIS ET UX.

Supreme Court of Alabama

November 27, 1889

Appeal from circuit court, Calhoun county; LEROY F. BOX, Judge.

Action by Badders & Britt against William A. Davis and his wife, to recover "for work and labor done and materials furnished at their request;" and also to fasten the statutory lien on the house built, and on the lot whereon the house was situated. The case was submitted to arbitration. Defendant pleaded "a special contract in writing, by and between plaintiffs and defendant, and that plaintiffs had not performed their part of said written contract, and that there had been no acceptance of the work or materials by defendant and that defendant was not liable for extra work and materials, because the same had not been contracted for and agreed upon, as provided in section 6 of the written contract." Plaintiffs introduced evidence tending to show that they had performed the work and furnished the materials which formed the basis of this suit, and also introduced in evidence an account which evidenced the amount of work claimed to have been done, and the materials alleged to have been furnished, with the charges made for the same. Defendant introduced in evidence the written contract upon which the house was let out to plaintiffs to be built; and also introduced evidence tending to prove that the house had not been built according to the plans and specifications which formed a part of said contract, and that he had not accepted the house as it was built by the plaintiffs; and also testified that he had not agreed to pay the plaintiffs for any extra work, except such as should be done under section 6 of the said contract. For the purpose of showing that he refused to accept the house from the plaintiffs as it was built, although he moved into it, the defendant introduced in evidence a long correspondence carried on between himself and plaintiffs. Plaintiffs objected to the introduction of this correspondence, but the arbitrators overruled the objection, and allowed the correspondence to be admitted as evidence; whereupon plaintiffs duly excepted. The principal contention arises under the sixth section of the contract, for extra work done and materials furnished by plaintiffs. Plaintiffs below take this appeal from the award of the arbitrators, which was made a judgment of the circuit court, and which allowed them to recover of defendant the sum of $86.29, and assign the judgment of the court and the other rulings of the arbitrators as error.

Brothers, Willett & Willett, for appellants.

Cassady & Blackwell, for appellees.

STONE C.J.

The order of submission to arbitration in this case was to two named persons, "they to call in a third man, whose award, when made according to law, to be made the judgment of the court." No third man was called in, but the two named arbitrators had the parties and their witnesses before them, heard the cause, and rendered their award. No objection was raised on the trial to the failure to call in the third arbitrator. Proceeding to trial before the two without objection was a waiver of the right to have the third man called in. Chapman v. Ewing, 78 Ala. 403.

The circumstances shown in the evidence tend very strongly to show that Davis, the proprietor, by moving into the house, did not admit it had been completed according to contract. We make this statement independent of the letters written by Davis; for his testimony that he moved in before the contractors ceased to work upon the house does not appear to have been controverted. His own letters or declarations, however, unless written or spoken contemporaneously with the act of moving into the house, were not legal evidence he could introduce for the purpose of rebutting or explaining any legitimate inference that could be drawn from the simple act of moving in. 1 Brick. Dig. p. 843, §§ 553, 555, 558.

There is another rule applicable to the correspondence found in this record. Either party to a litigation may give in evidence the admissions or declarations of the opposite party, oral or written, if pertinent to the issue. And, when necessary to their proper understanding, may, in case of oral admissions, prove the question or statement, if any, which called them out, or, in case the communication is in writing, may introduce in proof the letter which called out the reply. Many of the letters found in this record were not admissible under any of the rules stated above. But the objection was to all the letters indiscriminately, and, as made, the arbitrators did not err in overruling it. 3 Brick. Dig. p. 443, § 570.

The most important question in this case arises under the sixth article of the written contract. That contract was entered into and signed by both parties before the work was begun. The sixth article or provision of the contract stipulates that "no new work done on the premises *** shall be considered as extra, unless a separate estimate in writing for the same, before its commencement, shall have been submitted by the contractor to the proprietor, and his signature obtained thereto." A plan and specifications for the dwelling, prepared by an architect, formed the basis of the contract, and the agreement was to build in accordance therewith. The testimony tends strongly to show that, pending the construction, several alterations were agreed on between the parties, but not in writing. These alterations consisted of a change in the plan of the house, by omitting some things embraced in the specifications, and substituting others, and in some instances, by supplying better and more costly materials in the place of inferior ones. We do not understand there is any denial that this oral agreement was made, and that the plan of the house was altered accordingly. This change involved, as we have said, the omission of certain parts included in the architect's plans, and replacing them with something else. The plaintiffs below-appellants here-claim that these changes worked a difference in the value of the materials and workmanship, as furnished and done, of near $100 above the work and materials for which they were substituted. And, acting on the assumed binding effect of the agreed alterations, they prepared and presented their claim, in which they charged the proprietor with the materials and labor which they claim in excess of the architect's specifications, and credited him with such as were omitted in consequence of the change. The sum of the extras claimed is $160, while the omissions credited foot up about $64, as we understand the figures. They claimed in the suit $560, which would be the amount due them, if their postulates are correct; that is, if the alterations, as claimed, were agreed on, if the agreement was and is...