Cunningham v. Lowery

• Decision Date: 15 April 1970
• Docket Number: 6 Div. 5
• Parties: Dee CUNNINGHAM v. Felix LOWERY and Nathan Lowery.
• Court: Alabama Court of Civil Appeals

Page 709

236 So.2d 709

45 Ala.App. 700

Dee CUNNINGHAM v. Felix LOWERY and Nathan Lowery.

6 Div. 5.

Court of Civil Appeals of Alabama.

April 15, 1970.

Rehearing Denied May 6, 1970.

Rosen, Wright, Selden & Harwood, Tuscaloosa, for appellant.

Robert V. Wooldridge, Jr., Tuscaloosa, for appellees.

WRIGHT, Judge.

Suit was filed in the Circuit Court of Tuscaloosa County, Alabama, by the three plaintiffs against defendant. The original complaint contained five counts. Counts 2 and 4 were struck during the trial of the matter. Count 1 alleged breach of an express contract. Counts 3 and 5 were common counts, count 3 being for work and labor done at defendant's request and count 5 for goods and materials supplied to and accepted by defendant. Demurrers of defendant to the complaint were overruled. Defendant filed pleas in recoupment and by agreement, plea in short by consent, the general issue, with leave to give in evidence any matter which if well pleaded would be admissible in defense.

During the course of the trial, plaintiffs amended their complaint by striking one of the original plaintiffs and by changing the spelling of the names of the plaintiffs from 'Laury' to 'Lowery.' These amendments were allowed by the court over the objection of the defendant.

The case was tried by jury and a verdict returned in favor of the plaintiffs and against the defendant in the amount of $5000, and judgment was entered in accordance therewith.

Appeal was duly taken from the verdict and judgment, and from the judgment of the court overruling defendant's motion for a new trial. The matter was presented to this Court upon 80 assignments of error, 16 of which were specifically waived by appellant in brief. We are thus requested to consider the remaining 64 assignments of error on this appeal. In support of these 64 assignments of error appellant submits for our consideration 6 propositions of law. It is therefore obvious that the majority of appellant's assignments of error are repetitious for purpose of argument and our consideration of same. The consideration of this appeal has placed an almost intolerable burden upon the Court, and we would most seriously recommend to counsel for appellant that repetitious assignments of error be eliminated in brief and argument.

The tendency of the evidence presented is that appellant-defendant, Dee Cunningham, was the owner of certain property in Tuscaloosa County upon which was located deposits of sand and gravel. There was also located on the property and owned by appellant, a plant for the processing of sand and gravel. It was disclosed during the testimony that appellant actually owned only a one-half interest in the real estate involved. We do not consider this fact relevant to the disposal of the issues involved in this appeal.

It is largely undisputed that an oral contract was entered into between the parties whereby appellees were to enter upon the property of appellant, provide the necessary funds and work and labor required to place the processing plant in operation, and then to extract, process and sell the sand and gravel, paying to appellant a royalty thereon of 25cents per yard.

For some four and one-half months after entry on the premises, appellees spent sums of money for work, labor and materials in attempting to make the processing plant operable. In spite of their efforts, the evidence was that the plant never really became operable, but operated only for brief periods of time and would break down. There was evidence that the total amount of sand or gravel processed was only about a thousand yards. Some amount was sold and royalties paid to appellant.

After approximately four and one-half months, Felix Lowery, the apparent leader of appellees in the project, left the operation and went to Alaska and was gone for eighteen to twenty days. During his absence, appellant apparently determined to rescind the contract with appellees and entered into a written contract with another party to take over the operation of the plant. As a result of this action by appellant, appellees charged a breach of contract.

Appellees presented evidence as to damages, resulting from the breach, for the amount of the expenses incurred, together with the reasonable value of the work and labor performance and materials supplied in their effort toward performance. The counts of the complaint on the common counts were for quantum meruit or unjust enrichment of appellant for work and labor done at the request of appellant, and for goods and materials supplied to appellant which he accepted. There was no evidence introduced to show loss of profit as a result of the breach.

The first assignments of error which we shall consider are assignments 2 and 3, argued jointly by appellant, and charging error in the overruling of appellant's demurrer to counts 3 and 5 of the complaint. The specific grounds of demurrer insisted upon in brief are that counts 3 and 5 do not follow the code form and are insufficient in that they do not charge that the amount sued for is due and unpaid.

The counts of the complaint attacked by appellant's demurrer were as follows:

'Count 3. The plaintiffs claim of the defendant Nine Thousand ($9,000.00) Dollars for work and labor done for the defendant by the plaintiffs on, to-wit: a period extending from January 4, 1965, through May 21, 1965, and which the defendant has accepted.

'Count 5. The plaintiffs claim of the defendant Nine Thousand Dollars ($9,000.00) for goods and materials supplied to defendant by the plaintiffs on, to-wit: a period extending from January 4, 1965, through May 21, 1965, and which the defendant has accepted such goods and materials; wherefore plaintiffs sue.'

These counts obviously were patterned after the code counts as set out in Title 7, Section 223, Form 10, Code of Alabama 1940, but do not conclude with the words 'which sum of money, with interest thereon, is still unpaid.' We do not know why appellee was not able to follow the code form. It has often been held that a count following substantially the code form is sufficient on demurrer. In fact, the introductory clause to Section 223 states this rule specifically. However, it has been held that the failure to conclude a common count as provided in the code form with the allegation that the sum sued for is due and unpaid, or words to that effect, is defective when such omission is specifically pointed out by demurrer. Newell Contracting Co. v. Glenn, 214 Ala. 282, 107 So. 801; Perry & Walden v. Gallagher, 200 Ala. 68, 75 So. 396; Ahrens-Rich Auto Co. v. Beck & Corbitt Iron Co., 212 Ala. 530, 103 So. 556; Denson v. Kirkpatrick Drilling Co., 225 Ala. 473, 144 So. 86. In the instant case the failure of appellee to follow the code form in counts 3 and 5 was specifically pointed out by appellant's demurrer, and the demurrer should have been sustained.

Though error was committed in overruling appellant's demurrers to counts 3 and 5, it is not sufficient to work a reversal of the judgment. Count 1 of the complaint remains, and since the judgment was general it may be assigned to the remaining count. This is true, because the evidence as to damages would be admissible under count 1 of the complaint. Count 1 alleges the breach of an express contract in which the usual measure of damages is either a stated contract price or the profits less expenses. Peck-Hammond Co. v. Heifner, 136 Ala. 473, 33 So. 807; Paris v. Buckner Feed Mill, Inc., 279 Ala. 148, 182 So.2d 880. In the absence of evidence as to either a stated contract price or profits there is an alternative measure of damages. In cases where there has been preparation and part performance of a contract followed by breach thereof preventing full performance, damages may consist of the reasonable expenditures made in preparation and part performance. Worthington et al. v. Given, 119 Ala. 44, 24 So. 739; Corbin on Contracts, Vol. 5, Sections 996, 1031. This principle and rule of law was first stated by the Supreme Court of Alabama in the case of Danforth v. Tenn. & Coosa RR Co., 93 Ala. 614, 620, 11 So. 60, 62 as follows:

'If the breach consist in preventing the performance of the contract, without the fault of the other party, who is willing and able to perform it, the damage of the latter consists in two distinct items, namely: First, what he has already expended towards performance, (less the value of the materials on hand;) secondly, the profits that he would realize by performing the whole contract. * * *

'Where the proof fails to show that a profit would have been realized, the recoverable damages consist in the reasonable expenditures made, loss of time, less the value of the material on hand.'

This statement was approved and cited in the cases of Varner v. Hardy, 209 Ala. 575, 96 So. 860; Malone v. Reynolds et al., 213 Ala. 681, 105 So. 891.

Under this authority, we hold that the evidence admissible under common counts on quantum meruit and quantum valebat, when the sums claimed therein arise out of an express contract, is admissible and may be applied to a count alleging breach of the same express contract.

Appellant's argument in brief with respect to assignment of error 1, consists of two sentences. Revised Rule 9 of the Supreme Court of Alabama states in part as follows: 'Assignments of error not substantially argued in brief will be deemed waived and will not be considered by the Court.' We do not consider argument consisting of two short sentences substantial under the above quoted Rule. We deem it waived and will not consider it. Bertolla v. Kaiser, 267 Ala. 435, 103 So.2d 736; Woods v. County Board of Education of Sumter County, 264 Ala. 81, 84 So.2d 780.

Appellant's assignment of error 4 falls within the same category, just described, as to assignment of error 1. Under the requirements of Rule 9 we do not consider it adequate argument for this Court's consideration. We will state, however, that the issue presented by...