Corpening v. Worthington

• Decision Date: 06 February 1893
• Parties: CORPENING ET AL. v. WORTHINGTON ET AL.
• Court: Alabama Supreme Court

12 So. 426

99 Ala. 541

CORPENING ET AL. v. WORTHINGTON ET AL.

Supreme Court of Alabama

February 6, 1893

Appeal from circuit court, Jefferson county; James B. Head, Judge.

Action by W. G. Corpening & Co. against J. W. Worthington and Co. to recover $12,000 under a contract, and for work and labor done. From a judgment for $321.59 in favor of plaintiffs they appeal. Affirmed.

Lane &amp White, for appellants.

HARALSON J.

The appellants, plaintiffs below, sued on a written contract entered into by them and the defendants, wherein, in consideration of certain clearing, grubbing, masonry, and grading of the railroad track of the Birmingham Mineral Railroad Company, in the construction of the roadbed in its building and extension, which the plaintiffs bound themselves to do, the defendants undertook and agreed to pay them certain prices for the work to be done, averring that they had complied with all the provisions of said contract on their part, and that defendants failed to comply with the provisions on their part, in that they have failed to pay plaintiffs for the work they did, at the prices agreed on and mentioned in the complaint, which sums, with the interest thereon, they sue to recover. The common counts were added. The defendants pleaded nine pleas, three of which,-the 4th 5th, and 6th,-with the demurrers and replications to them and the demurrers alleged to be filed to the replications, we are invited, by the assignments of error, to consider.

1. The fourth plea sets up, in substance, the same contract which is set up in the special count as the basis of the action, and sets up additional terms of said contract, not set out in the special count, confessing that the defendants agreed to pay the plaintiffs for the labor and services contracted to be done and rendered, as set forth in said contract, but it was on the conditions, and with the understanding and agreement as stipulated in said contract,-which plaintiffs had not mentioned in their complaint,-that such labor and services were to be done and rendered according to specifications annexed to said contract, as a part of it, and were to be classed, estimated, approved, and accepted by the engineer of said railroad. That plaintiffs bound themselves in said contract (1) not to assign or pledge, in favor of third parties, any money falling due under said contract, or retained by defendants as reserved percentages, under the terms of said contract; (2) to use no other powder for the work under said contract but that furnished by defendants, at prices specified; (3) that they would keep at work a force capable and equal to completing the work contracted for, in a workmanlike manner, within the time stipulated for its completion; and (4) that plaintiffs would complete the work contracted by them to be done on or before the 30th day of September, 1887. That defendants duly kept and performed all their obligations and undertakings in said contract specified, and the plaintiffs had failed to perform theirs. Four breaches of said contract are assigned in said plea, according to the four specifications of duties to be performed by the plaintiffs, as they are above set out, claiming $13,000 damages for each of the four several breaches. The defendants also claim that, "by each of said four breaches, any balance due to plaintiffs under said contract, to wit, 15 per cent. of the amount paid or due for work or services rendered under said contract, was thereby...