Bixby-Theisen Co. v. Evans

• Citation: 65 So. 81,186 Ala. 507
• Decision Date: 16 April 1914
• Docket Number: 653
• Parties: BIXBY-THEISEN CO. v. EVANS.
• Court: Supreme Court of Alabama

65 So. 81

186 Ala. 507

BIXBY-THEISEN CO. v. EVANS.

No. 653

Supreme Court of Alabama

April 16, 1914

Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.

Action by M.H. Evans against the Bixby-Theisen Company for damages for breach of contract. Judgment for plaintiff, and defendant appeals. Affirmed.

The complaint on which the case was tried will be found set out in a former report in 174 Ala. 571, 57 So. 39. The following are the pleas: (3) "Plaintiff first breached or violated the contract sued on in that he did not, as stipulated in said contract, furnish all the labor and material to construct and put in complete a stone and concrete dam across Town creek." (4) "Plaintiff first breached the violated contract sued on in that he did not purchase and install complete a turbine wheel and band sawmill as stipulated in said contract." (5) "Plaintiff first breached or violated the contract sued on in that he did not as stipulated in said contract, complete the improvements specified in said contract." (7) "Plaintiff himself first breached or violated the contract sued on in that notwithstanding the fact that defendant did furnish or expend under the direction of the plaintiff a large sum of money, to wit, $1,500, in the purchase of a sawmill as required to be erected by plaintiff on the premises and in the manner specified in the contract, yet plaintiff did not erect the stone and concrete dam across Town creek as in said contract provided, but failed and refused to do so."

The following charges were refused to defendant: (4) "The court charges the jury that if the plaintiff was unable to furnish the money, over and above the $2,000, which was contracted to be furnished by defendant, if it is reasonably shown that it would take more than the $2,000 to make the improvements on the premises, defendant had the right to suspend the advancement of money under the contract until he showed he was able to carry out his part of the contract." (3) General charge for defendant. (1) "The court charges the jury that plaintiff cannot recover as damages for any money advanced by defendant and expended on the work provided for by the contract." (5) "The court charges the jury that, if Evans is entitled to recover in this case, he can only recover the following (1) Cost of partly tearing down old dam; (2) cost of restoring old dam to its former condition, after breach of contract; (3) rental value from the breach of the contract to restoration of dam and mill; (4) value of labor, tools, and material." (6) "The court charges the jury that, if plaintiff is entitled to recover, he can only recover the money he expended in partly tearing out the old dam; the cost to him of placing the dam in the condition in which it was before the contract was breached; the rental value of the mill from the time the contract was breached until it was restored to its former condition; the value of labor or money expended for labor, the loss and value to him of tools and material to the time the contract was breached, together with interest on such sum, less the amount advanced by defendant under the contract with interest." (7) "The court charges the jury that plaintiff cannot recover for any money expended on the work mentioned in the complaint and contract which was furnished by defendant." (8) "The court charges the jury that plaintiff cannot recover for anything in this case, except: (1) For the cost of tearing out the dam, if any part was taken out; and (2) the water house; and (3) the rent of the mill while idle; and (4) what it cost to put the dam and mill back in practically the condition it was in before the work was entered upon--from this should be deducted all money and property advanced by defendant to plaintiff." (9) Substantially the same as 8. (13) "The court charges the jury that, under the evidence in this case, the jury will not be authorized to include, in any finding against defendant, any money furnished by defendant, and expended by plaintiff on the work contemplated by the parties." (A) "The court charges the jury that plaintiff cannot recover from defendant amounts advanced by defendant to the plaintiff under the contract." The court gave the charge and said: "He is not entitled to recover that money as an element of damage, but is entitled to recover for value of the work and materials furnished."

John A. Lusk & Son, of Guntersville, for appellant.

Street & Isbell, of Guntersville, for appellee.

McCLELLAN J.

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