Boudrow v. H & R Const. Co.

• Decision Date: 13 March 1969
• Docket Number: 6 Div. 252
• Citation: 284 Ala. 60,222 So.2d 154
• Parties: Earl A. BOUDROW et al., d/b/a Earl A. Boudrow & Son, Inc. v. H & R CONSTRUCTION COMPANY, Inc.
• Court: Alabama Supreme Court

Page 154

222 So.2d 154

284 Ala. 60

Earl A. BOUDROW et al., d/b/a Earl A. Boudrow & Son, Inc. v. H & R CONSTRUCTION COMPANY, Inc.

6 Div. 252.

Supreme Court of Alabama.

March 13, 1969.

Rehearing Denied May 8, 1969.

Clement, Rosen, Hubbard & Waldrop, Tuscaloosa, and Weir & Shannon, Birmingham, for appellants.

Zeanah & Donald, Tuscaloosa, for appellee.

LAWSON, Justice.

This is an appeal from a judgment of the Circuit Court of Tuscaloosa County.

H & R Construction Company, Inc., a corporation, sometimes hereinafter referred to as H & R and sometimes as the plaintiff, was a subcontractor to Earl A. Boudrow & Son, sometimes hereinafter referred to as Boudrow & Son, which concern had been awarded the general contract for the construction of a student nurses' housing facility for Hale Memorial Tuberculosis Hospital in Tuscaloosa for the owners, District 11 Tuberculosis Sanitarium Authority.

On December 3, 1963, Boudrow & Son entered into a written subcontract with H & R for certain concrete work as provided in the general plans and specifications. H & R began work pursuant to the provisions of that contract and the said concrete work was completed and accepted. The aforementioned contract will generally be referred to as the concrete contract.

In February of 1964 Boudrow & Son agreed with H & R on the terms of a subcontract for masonry work on the aforementioned housing facility, which consisted generally of the brick, concrete block and glazed tile work. This work appears to have been begun by H & R in February of 1964, although the written contract was dated March 30, 1964, and was signed a few days later. This last-mentioned contract will generally be referred to as the contract for masonry work.

H & R had completed all of its work under both contracts by September 6, 1964, and the entire building was approved and accepted on October 9, 1964.

On October 21, 1964, H & R filed its complaint in the Circuit Court of Tuscaloosa County against Earl A. Boudrow and Jerry A. Boudrow, individually, and as partners doing business under the name and style of Earl A. Boudrow & Son; and Earl A. Boudrow & Son, Inc., a corporation.

The complaint consists of four common counts in Code form. See Form 10, § 223, Title 7, Code 1940. Count 1 is for work and labor done. Count 2 is for money paid (by) the plaintiff for defendants at their request. Count 3 is on account and Count 4 is on account stated. In each count of the complaint H & R sued for the sum of $23,966.50, with interest until paid.

Earl A. Boudrow and Jerry A. Boudrow, individually, and Earl A. Boudrow and Jerry A. Boudrow, as partners, appeared specially and filed a plea in abatement, to which the trial court sustained demurrer interposed by H & R. Thereafter, Earl A. Boudrow and Jerry A. Boudrow, individually and as partners doing business under the name and style of Earl A. Boudrow & Son, appeared specially and filed an 'Amendment to Plea in Abatement.' H & R filed a 'Demurrer to Plea in Abatement as Last Amended,' which demurrer was sustained by the trial court. The demurrer interposed to the 'Amendment to Plea in Abatement' consisted of the grounds included in the demurrer interposed to the original plea in abatement, together with additional grounds.

Thereafter, Earl A. Boudrow and Jerry A. Boudrow, individually and as partners doing business under the name and style of Earl A. Boudrow & Son, filed a plea of recoupment and an instrument which bears the caption, 'Answer,' but which the parties and the trial court considered as constituting five pleas.

H & R interposed demurrer to the plea of recoupment and to the said five pleas, separately and severally.

The trial court sustained demurrer to the plea of recoupment and to Pleas 3, 4 and 5. Demurrer to Pleas 1 and 2 was overruled.

A subsequent judgment entry contains the following language: '* * * By agreement of parties, defendants for answer to the complaint in this cause and to each and every count thereof, separately and severally, plead in short by consent the general issue. * * *'

The cause came on for trial on June 4, 1965. On that day the plaintiff, H & R, with leave of the court, amended its complaint so as to eliminate Earl A. Boudrow & Son, Inc., a corporation, as a party defendant and to increase the amount sued for to the sum of $25,831.22. The plea of the general issue in short by consent was thereafter interposed to the complaint as last amended.

As we understand the record, the case went to the jury on behalf of H & R on the four aforementioned common counts and on behalf of the defendants named in the original complaint other than 'Earl A. Boudrow & Son, Inc., a corporation,' on the plea of the general issue in short by consent.

At the conclusion of the trial a verdict was returned which reads as follows: 'We, the jury, find the issue in favor of the plaintiff, and assess the plaintiff's damages at $22,960.00.' Judgment was entered in accord with the verdict of the jury.

Motion for a new trial filed by the defendants Earl A. Boudrow and Jerry A. Boudrow, individually, and as partners doing business under the name and style of Earl A. Boudrow & Son, was overruled. Thereafter, the said defendants timely perfected an appeal to this court.

The plaintiff, H & R, sought to recover from the defendant Boudrow & Son the sum of $7,791 under the written subcontracts, which sum is referred to by the parties as retainage, and in addition thereto the plaintiff introduced evidence going to show that the defendants owed it various sums for: (1) the cost of basement refill; (2) the cost of unloading materials; (3) the cost of repair of storm damage; (4) the cost of construction of brick manholes and catch basins; (5) the cost of labor for a period from May 3, 1964, to June 12, 1964; (6) the cost of pargeting the building while under construction; (7) the cost of labor for the period of June 16 to July 26, 1964; and (8) a sum for additional overhead and profit. The total of all the sums so claimed by the plaintiff of the defendants approximates $26,000.

It was plaintiff's contention that all the sums claimed by it except the amount of the retainage and, perhaps, the sum claimed for additional overhead and profit, were due by virtue of agreements made between the plaintiff and the defendants for work and services performed by the plaintiff for the defendants which were not covered by the written subcontracts.

The defendants below will sometimes hereinafter be referred to as the appellants.

The appellants have made twenty-four assignments of error, the first of which is to the effect that the trial court erred in overruling their motion for a new trial.

We have said that a general assignment of error on appeal, grounded on the refusal of the trial court to grant a motion for a new trial, is sufficient to invite a review of ruling as to any ground well stated in the motion and properly argued by appellant; that is, when the motion for a new trial is sufficient to specify the precise error alleged to have occurred, a general assignment of error on appeal for refusing the motion is sufficient to bring up for review those matters so precisely set out in the motion. However, grounds of the motion for a new trial relied upon must sufficiently specify the precise error alleged to have occurred. In other words, a ground of a motion for a new trial is to be considered the same as if it were a separate assignment. A ground of a motion for new trial that the verdict was contrary to the law is not sufficient to be treated as an assignment of error. General Finance Corp. v. Bradwell, 279 Ala. 437, 186 So.2d 150, and cases cited. See Danley v. Marshall Lumber & Mill Co., 277 Ala. 551, 173 So.2d 94; State v. Kohn, 278 Ala. 507, 179 So.2d 86; Allred v. Dobbs, 280 Ala. 159, 190 So.2d 712.

No ground of the motion for new trial is referred to in appellants' argument made in support of the first assignment of error and we are not certain that we have correctly related that argument to the grounds of the motion for new trial which counsel for appellants intended the argument to be directed.

Perhaps a part of the argument made in support of the first assignment of error was intended to be considered by us as being in support of Grounds 36, 37, 52, 53 and 54 of the motion for new trial, which grounds read:

'36. For that the Court erred in failing to grant a new trial at the request of the defendants on grounds of improper conduct, statements, and matters made by plaintiff's counsel which created bias, passion, and prejudice in the minds of the jurors which could not be corrected.

'37. For that the Court erred in permitting counsel for the plaintiff, over the objection of the defendants, to make improper argument, statements, and conclusions before the jury which were highly prejudicial and prevented the defendants from obtaining a fair trial.

'52. For that the persistent action of plaintiff's counsel in injecting into the case in the presence of the jury highly prejudicial inadmissible matters under the guise of arguments as to admissibility of evidence constituted misconduct on the part of prevailing party, the consequence of which highly prejudicial matters were not, and could not be eradicated from the minds of the jury by cautionary instruction from the Court.

'53. Misconduct of prevailing party by and through his counsel, the consequences of which could not be eradicated from the minds of the jury.

'54. For that the persistent and continued abuses by counsel for the plaintiff throughout the trial of this cause of the privilege of argument and the repeated insertion in his argument in presence of the jury of highly prejudicial inadmissible statements, the effect of which could not be eradicated from the minds of the jury, amounted to such misconduct of the prevailing party as to require the granting of a new trial.'

We entertain considerable doubt as to whether the grounds of the motion for a new trial...