Birmingham Paint & Roofing Co. v. Crampton & Tharpe

• Decision Date: 30 June 1905
• Citation: 39 So. 1020
• Parties: BIRMINGHAM PAINT & ROOFING CO. v. CRAMPTON & THARPE.
• Court: Alabama Supreme Court

39 So. 1020

BIRMINGHAM PAINT & ROOFING CO. v. CRAMPTON & THARPE.

Supreme Court of Alabama

June 30, 1905

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

"Not officially reported."

Action by the Birmingham Paint & Roofing Company against Crampton &amp Tharpe. From a judgment for defendant, plaintiff appeals. Affirmed.

Plea 3 was as follows: "Further answering said complaint defendant says that the plaintiff failed to complete the work or contract undertaken by it, and for which this suit is brought to recover the price and that it was and became necessary for them to have the same completed, which was done by them at great cost and expense, to wit, $125, and this sum they offered to set off against plaintiff's demand."

Demurrers to third plea: "(1) Said plea fails to set up any item to the count for which it is said that defendants paid for completing the contract which plaintiff avers was agreed upon by plaintiff and defendants. (2) Said plea fails to aver that the defendants, either by liquidated or unliquidated demand claim of plaintiff any damages, and it is not averred what material or what labor was paid for by the defendants."

J. W Bush, for appellant.

W. T. Hill, for appellees.

DENSON J.

"Under the statute, no objection to pleading can be considered other than that specifically stated as ground of demurrer." Code 1896, § 3294; Sledge v. Swift, 53 Ala. 110; Eads v. Murphy, 52 Ala. 520; Cotten v. Rutledge, 33 Ala. 110.

Plea numbered 3, the plea of set-off, was not subject to demurrer on the grounds assigned, and the court properly overruled the demurrer to it. Sledge v. Swift, supra; Rosser v. Bunn, 66 Ala. 89; Lang v. Waters' Adm'r, 47 Ala. 624; Finney v. Denny, 122 Ala. 449, 25 So. 45.

Plea 4 set up, in defense to the plaintiff's cause of action, "that the plaintiff breached its contract in this: that in said contract and as a part thereof plaintiff agreed that the work and labor done in and about putting on said roof should be performed by union labor, or laborers belonging to the union, and plaintiff in disregard of this placed upon said work workmen who were not union laborers or did not belong to the union." It may be that the existence of the labor union is a matter of public history of the kind that the courts take judicial knowledge of; but courts will not take judicial knowledge of the compact or agreement, or its nature, or of the principles and tenets by which laborers belonging to the union are bound, and without this knowledge we cannot hold on the simple averment that a contract made, by which one party agrees to do a piece of work for another with union laborers, is void on the ground of public policy. So far as the facts averred in the plea go, it does not appear that the laborers referred to are not a class preferable on account of superior skill than others and for which the parties had a legal right to contract that the work should be done. In this state of the pleadings the question as to whether or not the contract is void on the ground of public policy is not presented, and the demurrer to plea 4 was properly overruled.

The gravamen of plea 6 is that the plaintiff agreed to construct the roof with union labor, and in disregard of the contract plaintiff failed and refused to use the kind of labor which it agreed to use. The remainder of the plea is mere matter of inducement, not essential to have been averred. For the reasons pointed out in discussing the demurrer to plea 4, the court property overruled the demurrer to plea 6.

Issue was joined on the general issue and the special pleas, among them a plea of tender which was substantially in Code form. Code 1896, p. 949, form 36.

It was agreed between the parties, as the jurors were retiring to consider of their verdict, that the verdict, if not in form might be put in proper form. The verdict was returned in this language: "We, the jury, find a verdict for the defendant, and sustain the plea of tender of $100." The court changed the form of the verdict, so as to make it read as follows: "We, the jury, find the issues in favor of the defendant on the plea of tender." The court then rendered judgment for the plaintiff for the sum of $100, the amount alleged in the plea as the amount tendered, and rendered judgment against the plaintiff for the costs of the suit. The effect of a plea of tender is an admission of plaintiff's demand to the extent of the amount tendered: "And the paying of the amount tendered in court is treated as paying and striking from the complaint the amount tendered and deposited; and unless the plaintiff proves more than that amount, the verdict upon the issue joined under that plea should be for the defendant." Gardner v. Black, 98 Ala. 638, 12 So. 813; Schuessler v. Simon, 100 Ala. 422, 14 So. 203; Syson v. Hieronymous, 127 Ala. 482, 28 So. 967; Hanson v. Todd, 95 Ala. 328, 10 So. 354. The verdict of the jury sustained the plea of tender, and as a result of the verdict the money in the hands of the clerk became the property of the plaintiff. On the verdict a judgment adjudging the costs against the plaintiff and ordering the clerk to pay the money which had been placed in the custody of the court by defendants over to the plaintiff would have been proper. Foster v. Napier, 74 Ala. 393; Hanson v. Todd, 95 Ala. 329, 10 So. 354; Gardner v. Black, 98 Ala. 638, 12 So. 813; Schuessler v. Simon, 100 Ala. 422, 14 So. 203; Code 1896, § 3298. However, the form given to the judgment in this...