Burnett & Bean v. Miller

• Decision Date: 21 April 1921
• Docket Number: 5 Div. 783
• Citation: 205 Ala. 606,88 So. 871
• Court: Alabama Supreme Court
• Parties: BURNETT & BEAN v. MILLER.

88 So. 871

205 Ala. 606

BURNETT & BEAN v. MILLER.

5 Div. 783

Supreme Court of Alabama

April 21, 1921

Appeal from Circuit Court, Chilton County; B.K. McMorris, Judge.

Assumpsit by Burnett & Bean against Dalee Miller. Judgment for defendant, and plaintiffs appeal. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. Affirmed.

J.B Atkinson, of Clanton, for appellants.

Lawrence F. Gerald, of Clanton, for appellee.

THOMAS J.

The trial was upon the common counts, to which the defendant had pleaded the general issue and recoupment. Demurrer to the latter plea being overruled, plaintiffs replied by the general replication (Code, 1907, § 5338), and sought to reply by special replication No. 2, setting up estoppel, to which demurrer was sustained. These rulings are assigned and argued as error.

In the plea of recoupment it was averred that at the time of the institution of the suit defendant had a claim against plaintiffs "growing out of the transaction upon which this suit is based," and which is offered to be recouped "against the amount claimed in the complaint [and] as she asks for judgment for the excess," averring:

That "the plaintiffs were employed by her to do certain work on the property described in the complaint, in repairing, building additions to, or beautifying the building on said premises, and that plaintiffs were to do said work in a good and workmanlike manner"; that "plaintiffs did said work in a negligent and unskillful manner, and that as a proximate consequence thereof she was damaged ***; that said damages were proximately caused by the negligent unskillful manner of the said building by plaintiff, which negligence consisted in this: That plaintiff failed to do said work in a skillful and workmanlike manner."

Grounds of demurrer challenging the plea are that it is not averred that the work was not done by plaintiffs as directed by defendant; that it is not shown in what the negligence consisted which proximately caused her damages; and it is not averred "with exactness or definitely in what manner or defect defendant received her damage."

Under the statute there may be a judgment over on a plea of set-off or recoupment, for mutual debts, or liquidated or unliquidated demands, not sounding in damages merely ( West v. Cowan, 189 Ala. 138, 66 So. 816; Middleton v. Foshee, 192 Ala. 265, 68 So. 890) subsisting between the parties at the commencement of the suit, whether arising ex delicto or ex contractu. The damages claimed may grow out of the matter set forth in the complaint, or arise from plaintiff's breach of contract on which suit is founded, or from violation of a duty imposed by the contract. Code 1907, §§ 5858, 5860. The pleading necessary to such defense must contain the same averments which would make it a good complaint, if the claim sought to be set off or recouped were a suit brought thereon in the first instance. J.C. Lysle Milling Co. v. North Ala. Grocery Co., 201 Ala. 222, 223, 77 So. 748.

The duty of plaintiffs averred under the instant contract was to make the repairs of the building in a "good and workmanlike manner." The words "good and workmanlike manner" as used in this and other contracts in this jurisdiction, for the performance of the discharge of the particular service, mean that the same shall be done as a person skilled in that business should do it--in a manner generally considered skillful by those capable of judging such work in the community of the performance. Fitzgerald v. La Porte, 64 Ark. 34, 40 S.W. 261. See, also, Shores Lbr. Co. v. Stitt, 102 Wis. 450, 78 N.W. 562; Aughinbaugh v. Coppenhaffer, 55 Pa. (5 P.F. Smith), 347; Smith v. Clark, 58 Mo. 145; Somerby v. Tappan, Wright (Ohio) 229. And the breach of duty averred is that the plaintiffs' work was done in "a negligent and unskillful manner," proximately causing defendant to be damaged as claimed. This generality of averment is permissible in a complaint and in a plea of set-off or recoupment. T.C.I. & R.R. Co. v. Moore, 194 Ala. 134, 69 So. 540; Wilson v. Gulf States Steel Co., 194 Ala. 311, 69 So. 921; T.C.I. & R.R. Co. v. Smith, 171 Ala. 251, 259, 55 So. 170; Schmidt v. Mobile L. & R.R. Co., 204 Ala. 694, 87 So. 181. The plea was not subject to grounds of demurrer directed thereto.

A replication must either traverse or confess and avoid the matter pleaded, or present matter of estoppel thereto. McKimmie v. Forbes Piano Co., 155 Ala. 259, 261, 46 So. 772; Lee v. De Bardeleben C. & I. Co., 102 Ala. 628, 15 So. 270; Barbour & Son v. Washington E. & M.I. Co., 60 Ala. 433; Winter v. Mobile Sav. Bank, 54 Ala. 172; Mason v. Craig, 3 Stew. & P. 389. Replication 3 is defective as an estoppel in averring that defendant was present when the work was in progress and directed most of the work done. Under this pleading, inartificially drawn, non constat the work that was done when defendant was not present and did not direct was that which was negligently done, and which caused the damages of which complaint is made. It was subject to grounds of demurrer assigned. The other matter sought to be set up in the replication was admissible under the traverse of the plea. Long v. Myers, 202 Ala. 238, 80 So. 76.

Assignments of error predicated on the failure of the court to sustain plaintiffs' objection to the questions propounded to Mr. Plier and Mr. Kemp, are as follows:

"Q. Now, Mr. Plier, I will ask you to state to the jury what difference, if any, there was in the value of this property of Mrs. Miller, in the condition that it is in, and what it would have been, if the material used down there that you saw had been put into the place in a good and workmanlike manner?"

The plaintiffs then and there duly and legally objected to said question, on the ground that it was illegal, irrelevant, and incompetent, and the court then and there overruled said objections, and the plaintiffs duly and legally excepted to the court's said ruling. The witness answered:

"If it had been put in workmanlike manner it would have been worth a couple of hundred dollars more."

Plaintiffs moved the court to exclude the answer, the court overruled the motion, and plaintiffs duly excepted. The question and answer was one way of...