Beitman v. Birmingham Paint & Glass Co.

Citation185 Ala. 313,64 So. 600
CourtSupreme Court of Alabama
Decision Date12 February 1914
PartiesBEITMAN v. BIRMINGHAM PAINT & GLASS CO.

Appeal from Circuit Court, Jefferson County: E.C. Crowe, Judge.

Assumpsit by the Birmingham Paint & Glass Company against Mrs. Lula Beitman and another, as to whom the case was discontinued at the trial. Judgment for plaintiff, and defendant named appeals. Reversed and remanded.

The facts sufficiently appear from the opinion. The following are the charges referred to, as given at plaintiff's request "(1) I charge you that, if you believe from the evidence that Mr. Beitman, acting for the defendant, agreed with plaintiff that they would furnish the material which is a basis for this suit, he would pay for same out of any money due the contractor, and that this material was so furnished and that there was a balance due such contractor, then you must find for plaintiff to the extent of that unpaid balance not in excess of the amount here sued for." The following charge was refused defendant: "(6) The court charges the jury that, if they believe from the evidence that the material sued for in this suit was charged to J.G Harris, and delivered to J.G. Harris, then they cannot find against the defendant, even though they believe from the evidence that Beitman or Weiss agreed to pay for same."

A. Leo Oberdorfer, of Birmingham, for appellant.

Perdue & Cox, of Birmingham, for appellee.

SAYRE J.

Omitting any statement of other counts, which, on various considerations, were eliminated during the progress of the trial, plaintiff (appellee) sought in the beginning to recover on the common counts for the price of certain building materials, sash, doors, and hardware, furnished on the joint credit and account of defendant (appellant) and one Harris. When plaintiff had placed its entire evidence before the jury, it very clearly appeared that the materials had not been furnished on the joint account of defendant and Harris but that they had been furnished on the sole credit of one or the other of them, or on the credit of Harris as principal debtor, with defendant as surety or guarantor. It also appeared, and this, too, without conflict, that, if defendant was not liable as principal, plaintiff could not recover as against her, because, on that hypothesis, her promise to pay was not in writing, and the statute of frauds had been pleaded. In this state of the case, plaintiff amended its complaint by striking the name of Harris as party defendant thus electing to proceed against the defendant Mrs. Beitman alone, whereupon said remaining defendant moved for a discontinuance, and now assigns the court's adverse ruling for error. The court's ruling was correct. Defendant contended that Harris alone was liable, and had evidence to support that contention; indeed, the cross-examination of plaintiff's witnesses developed facts tending to support defendant's view. But, on the other hand, plaintiff's evidence tended also to support its contention that Mrs. Beitman alone was answerable for the materials it had furnished, as will presently appear in some detail, and, while in this state of the case plaintiff could not continue to prosecute as for a joint liability, it was not bound to accept Mrs. Beitman's theory of the case, though that theory found support in the testimony of witnesses offered by plaintiff, but had the right, on the appearance of conflicting tendencies, to take either horn of the dilemma in submitting its case to the jury, without incurring the penalty of a discontinuance in advance of the jury's finding. In such case the amendment must be regarded as the correction of the plaintiff's asserted cause of action, and, if plaintiff makes a mistake, continues his pursuit of a party not liable on the evidence as the jury shall finally determine its weight and credibility, such party defendant will find relief in the jury box under proper instruction from the court. Jones v. Engelhardt, 78 Ala. 505.

On due consideration, we are of opinion that the question of defendant's (appellant's) liability was one for decision by the jury. The issues made by the pleading and evidence were as follows: For plaintiff one contention was that defendant, acting through her husband, her general agent in that behalf, promised without qualification to pay for the materials in controversy, and that they were furnished on her sole credit. On that theory, defendant was answerable to plaintiff, without regard to the outcome of the contract between defendant and her general contractor Harris, without regard to whether defendant owed Harris a balance. There was evidence to sustain this view of the case, though it was confused, and the testimony of plaintiff's main witness the witness, in fact, upon whom its case depended in last analysis, involved contradictions it would perhaps be hard to reconcile with any consistent theory of the facts. But that was for the jury. As an alternative, appellee (plaintiff below) contends here, as it did on the trial, that the evidence warranted a finding that defendant agreed to pay plaintiff for the materials, with this proviso, however: That her liability was to be limited to the amount in her hands due to Harris, with whom at the time she had a contract, by the terms of which he was to furnish all the materials and do all the work necessary in the construction of her building, according to plans and specifications which had been provided. This theory of defendant's liability is presented as the equivalent of her promise to pay plaintiff for materials it might furnish to Harris out of money for which she would become liable to Harris, and has been so treated. It rests upon a part of the testimony of plaintiff's main witness who deposed, among other things, that, when he conferred with Beitman about the matter of furnishing the materials, Beitman said: "It would be all right for me (meaning plaintiff) to furnish the materials; that he, upon orders from Mr. Weiss (defendant's superintendent in charge of the building), would pay and deduct the amount from Harris' bill." This theory of the case, and the question whether the quoted testimony supported it, were of much importance, for the court gave a special charge on plaintiff's hypothesis, and the court's judgment concerning these questions had the effect also of admitting plaintiff's evidence which went to show that defendant was indebted to Harris in a large balance at one stage of the work, and also at the time of the trial, thus practically laying upon defendant the burden of adducing evidence to maintain the contention, which she made in this emergency, that she owed Harris nothing, because she had been put to expense in completing the work which Harris had left in a defective and incomplete condition, and had suffered other damage by reason of his failure to complete within the time prescribed by his contract. It is not at all difficult to see how the importation of these issues into the case, if the trial court erred at this point, was prejudicial to defendant. And so defendant urges that, in the absence of Harris' consent to this arrangement, it was not binding on Harris, and he (Harris), upon the completion of the building according to contract, as he claimed and testified was the case, would have been entitled to recover of defendant the entire agreed price of the building into which the materials entered, though she had paid plaintiff...

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