Broyles v. Brown Engineering Co.

• Decision Date: 04 April 1963
• Docket Number: 8 Div. 69
• Citation: 275 Ala. 35,151 So.2d 767
• Parties: Joe Floyd BROYLES et al. v. BROWN ENGINEERING CO., Inc.
• Court: Alabama Supreme Court

Page 767

151 So.2d 767

275 Ala. 35

Joe Floyd BROYLES et al. v. BROWN ENGINEERING CO., Inc.

8 Div. 69.

Supreme Court of Alabama.

April 4, 1963.

John R. Thomas, Jr., and Glenn F. Manning, Huntsville, for appellants.

Lanier, Price, Shaver & Lanier, Huntsville, for appellee.

PER CURIAM.

Appellants, plaintiffs below, appeal from a judgment of involuntary nonsuit after an adverse ruling of the court in sustaining demurrers of appellee, defendant below, to the several counts of the complaint, two of which were amended.

The complaint consists of Counts 1, 2, 3, 4, and 5 (Counts 1 and 4 were amended), all of which have the same objective, worded differently, but essentially based on the statutory form for breach of warranty. Each count is elaborately phrased.

The objective of each count is to recover damages for violation of a contract between plaintiffs and defendant whereby the latter, an incorporated group of civil engineers, agreed to render civil engineering services and submit plans and specifications to plaintiffs for drainage of a proposed subdivision to be used as a housing project near Huntsville, Alabama.

Counts 1 and 2 allege that the agreement between the parties was partially expressed and partially implied, while the other three counts charge a violation of an agreement that was implied.

The contention of the plaintiffs in each count, briefly stated, is that the defendant, being informed of the nature of the project and the need of civil engineering services to define and draw plans and specifications for adequate drainage of a tract of land to be developed, accepted employment for the rendition of such engineering services. The complaint further charges that the drainage areas depicted on the plans submitted by the defendant were incorrect and did not show adequate storm drainage easements where necessary; that the drainage plans were inadequate for the purpose for which they were to be used; and that the drainage of the subdivision, due to the incorrectness of the plans and specifications submitted by defendant pursuant to its employment by plaintiffs, was (and is) subject to periodic floodings.

A demurrer to each count of the complaint presented to the trial court, and now to this court, the question of an implied warranty vel non on the part of defendant that the plans and specifications, the product of the alleged employment, were sufficient and adequate for the purposes they were intended as alleged in the complaint and briefly set out above.

The defendant contends that in the absence of an express contract, there is no liability for the alleged insufficiency or inadequacy of the plans except as may be attributable to its negligence or its failure to use reasonable skill and diligence in their preparation. Neither negligence nor the want of reasonable skill and diligence in the preparation of the plans was charged in the complaint. A breach of implied warranty of adequate results is the gravamen of each count. Plaintiffs take the position than an implied warranty exists and it casts upon the defendant the obligation of a guarantor or insurer of the plans for the purpose in view and of which defendant had knowledge when it accepted employment.

The difference between an expressed and an implied contract is merely in the mode of proof, the elements being the same, and where mutual agreement is contradicted by the statements of either party at the time, there being no expressed agreement, there can be no implication of contractual undertaking by that party. American Mutual Liability Ins. Co. v. McDiarmid, 211 Ala. 127, 99 So. 849.

In 17 C.J.S. Contracts § 4, page 320, the questions of what facts will establish a true implied contract are considered from the general authorities, and are to the effect that a contract implied in fact is a true contract, the agreement of the parties being inferred from the circumstances, showing a mutual intention to so contract. Such implication does not arise contrary to law or the expressed declaration of the parties. Cowan v. Martin & Huckaby, 246 Ala. 378, 20 So.2d 769.

Whatever is necessarily implied in a contract is as much a part thereof is if expressly stated therein. 12 Amer.Jur., Contracts, § 239, page 765.

An action for breach of duty arising out of a contract of employment, express or implied, to accomplish a particular result, is based on failure to perform the special agreement regardless of negligence. 70 C.J.S. Physicians and Surgeons § 38, page 943; Colvin v. Smith, 276 App.Div. 9, 92 N.Y.S.2d 794; Lakeman v. La France, 102 N.H. 300, 156 A.2d 123; Russell & Co. v. Polk County Abstract Co., 87 Iowa 233, 54 N.W. 212, 43 Am.St.Rep. 381, 28 A.L.R.2d 900.

A warranty of work may exist, however, if the parties so intended, without the use of any particular words in the contract. 12 Amer.Jur., Contracts, § 259, page 806. Van Buskirk v. Murden, 22 Ill. 446, 74 Am.Dec. 163.

An implied contract arises where there are circumstances which, according to the ordinary course of dealing and common understanding, show a mutual intent to contract. Such a contract must contain all the elements of an express contract, which rests on consent, and is to every intent and purpose an agreement between the parties, and it cannot be found to exist unless a contract status is shown. Gilbert v. Gwin-McCollum Funeral Home, Inc., 268 Ala. 372, 102 So.2d 646.

A contract may be pleaded by stating its substance and legal effect, or in haec verba, and all material elements should be stated with certainty to a common intent. Gilbert v. Gwin-McCollum Funeral Home, Inc., supra; Evans v. Town of Muscle Shoals, 235 Ala. 325, 179 So. 228.

We are of the opinion that, according to the allegations of the complaint, which on demurrer are admitted as true for the purpose of pleading, the defendant impliedly warranted the sufficiency and adequacy of the plans and specifications to reasonably accomplish the purpose for which they were intended as alleged in the several counts of the complaint. We are further of the opinion that an express warranty was not necessary to charge the defendant with becoming an insurer or guarantor that such plans and specifications would reasonably accomplish the purposes in view.

The complaint alleges knowledge on the part of the defendant that plaintiffs intended to subdivide the tract of land and convert the same to the erection of dwellings thereon, entailing an expensive outlay of money. The defendant professed to be expert or held itself out to be, and certainly was charged with notice that correct and adequate plans and specifications were essential for adequate drainage of rain water from the area of land to be converted. Common understanding and the ordinary course of dealing would speak up and justify a reasonable conclusion, as we view all the circumstances and the nature of the contract, that the parties mutually intended an agreement of guaranty as to the sufficiency and adequacy of the plans and specifications to accomplish proper and adequate drainage. To hold otherwise would be to ignore practical and common sense implications that arise from contractual...