Boohaker v. Trott
| Decision Date | 20 September 1962 |
| Docket Number | 8 Div. 103 |
| Citation | 274 Ala. 12,145 So.2d 179 |
| Parties | C. A. BOOHAKER, formerly d/b/a Cab Lumber Co. v. J. Allen TROTT, Jr., d/b/a Mecho of Alabama. |
| Court | Alabama Supreme Court |
Ross, Ross & Ross, Bessemer, Culver & Miller, Huntsville, for appellant.
Horace E. Garth, Huntsville, for appellee.
The complaint below was in a single common count and claimed $1365.00 for work and labor done.
The defendant filed a sworn plea questioning the jurisdiction of the court below. A demurrer to this plea being sustained, issue was joined on a plea of the general issue, and an additional plea in short by consent, with leave, etc.
The action of the court in sustaining the plaintiff's demurrer to the sworn plea going to the jurisdiction of the court below is not raised in this appeal.
The evidence shows that the defendant below, who is the appellant here, and who for convenience will hereinafter be referred to as the defendant, had been awarded a contract for the construction of Monte Sano school in Huntsville.
In turn, the defendant entered into a subcontract with the plaintiff below for the installation of the plumbing in the school. This included the construction of a large septic tank which was to be thirty-one and one-half feet long by nine feet wide, and eleven feet deep.
Under the original agreement between the plaintiff and the defendant, the plaintiff was to receive $10,500.00 for the plumbing work. The original agreement did not contain a 'rock' clause and at the plaintiff's request the contract was amended by a letter from the defendant to the plaintiff which read: 'This is to amend our contract dated November 25, 1958, on the above referred to job as follows: 'We will pay as an addition to the contract $35.00 per cubic yard for rock excavation as defined in the specifications and determined by the architect. We trust this meets your approval.''
The plaintiff introduced evidence tending to show that as he proceeded with the excavation for the reception of the septic tank, which was being done with a machine called a back hoe, rock was hit at a depth of about six feet, and could not be handled with the back hoe. He contacted the defendant's superintendent on the job and requested that the architect be sent for.
Work on the excavation was discontinued awaiting an inspection of the alleged rock formation by the architect.
During this waiting period, according to the plaintiff, he was urged by the defendant, and also by the defendant's superintendent, to go ahead and complete the excavation 'regardless.' We interpret this to mean regardless of an inspection by the architect.
After about a week the plaintiff moved in a jack-hammer and air compressor, and a crew of five men and removed some thirty-nine cubic yards of sandstone which the plaintiff contends was rock.
The evidence presented by the defendant was directed toward showing that the material which the plaintiff claims was rock was in fact a soft and disintegrated type of sandstone which should not be classed as rock.
In this connection Mr. Tom Jones, the architect, testified that upon being requested to inspect the alleged rock encountered in the excavation, he took with him Paul Walker, another employee of his architectural firm, to the excavation. The reason he had Walker go with him was because of Walker's prior experience in determining what was rock since he, Jones, had had no prior experience along this line.
They went to the excavation, obtained a ladder and climbed down to the bottom. According to Mr. Jones, they found a thin layer of moist sandstone which, with the aid of a pipe found in the excavation, they were able to pry loose. This substance was crumbly and was not rock and Mr. Jones stated they pushed the pipe into this substance maybe three inches.
Mr. Walker testified that the sandstone they found at the bottom of the excavation could be pried up with the pipe, and that they did not take a core drill and get a sample of what might be under this thin top layer. According to Mr. Walker, they did not go down any deeper in what they 'were standing on' and he did not know what might be under this layer.
The plaintiff in rebuttal introduced evidence tending to show that sandstone occurs in layers. The top layer generally from two to six inches thick is often moist and soft, while the deeper layers are hard and brittle, and properly classified as rock.
All in all a question for the jury as to the nature of the formation encountered in the excavation was presented, and by their verdict it is apparent that the jury found this issue in favor of the plaintiff.
However, the evidence shows that a dispute arose between the plaintiff and the defendant as to whether or not the material encountered in the excavation was rock, and therefore as to whether the plaintiff was entitled to any additional payment under the 'rock' clause contained in the contract as amended.
The plaintiff testified that after he had completed the excavation he met the architect, Mr. Jones, one morning at the school site:
The plaintiff testified that it was very likely that he saw the defendant at the school site on August 7, 1959, at about 5:30 P.M., and the defendant told him that he was in the process of ordering the final payment from the Board of Education for the school construction and the defendant advised him that he had forwarded the plaintiff's claim for reconsideration to the Board of Education and they had denied the extra claim for excavating rock on the basis of the architect's report.
The plaintiff further testified that he did not recall the exact date of this conversation but at that time he imagined that he had told Mr. Boohaker, the defendant, to go ahead and send his final check without taking into consideration the rock clause, as he was needing the money.
The record further shows that the septic tank excavating was finished between the 10th and 14th of June 1959. Plaintiff billed the defendant for the additional amount claimed under the 'rock' clause on 29 July 1959.
The defendant's version of his conversation with the plaintiff relative to the dispute over whether the sandstone encountered should be classified as rock, and their negotiations in connection therewith are well illustrated by the following excerpts from the defendant's testimony:
Defendant further testified that it was on the basis of their conversations that he mailed to the plaintiff a check in the amount of $2,514.30, dated September 14, 1959; that he told the plaintiff that he was going to issue the check and that it would be in full settlement of all claims, and the plaintiff had replied: 'Send me the check.'
The sum of money represented by the check, together with prior payments to the plaintiff, and charge backs on the contract for work done on the excavation by the defendant, amounted to $10,500.00, the price agreed upon between the plaintiff and defendant for the plumbing work.
The check dated September 14, 1959, was received in evidence, and shows on the face of the check the following legend: 'By Endorsement this check is accepted in full payment of the following account: 'Monte Sano Contract."
On the reverse side of the check appears the following legend: 'Endorsement below acknowledges in full settlement of any and all claims at indicated in margin on face of this check.'
The plaintiff testified that prior to endorsing and cashing the same, he typed under the legend appearing upon the face of the check the following:
In reference to this check, the record shows the following during the cross-examination of the plaintiff:
'Q And what is that document?
'A It is the check which Mr. Boohaker meant to be the final payment.
'Q What does the notation in the first column show?
'A I beg your pardon?
'Q What does the notation in the first column show?
'A You mean the part over here?
'Q Yes, sir.
'A On the top it says 'Monte Sano School,' and I typed,
'Q In other words, you changed that or altered it yourself?
'A I certainly didn't alter it.
'Q You altered that portion by including something else?
'A I amended it.'
Assignments of error 10, 12, 14, 15, and 20, are grouped for argument in appellant's brief. Assignments 10 and 12...
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