Danforth v. Tennessee & C.R. Co.

• Decision Date: 14 January 1891
• Citation: 11 So. 60,93 Ala. 614
• Court: Alabama Supreme Court
• Parties: DANFORTH ET AL. v. TENNESSEE & C. R. CO.

11 So. 60

93 Ala. 614

DANFORTH ET AL. v. TENNESSEE & C. R. CO.

Supreme Court of Alabama

January 14, 1891

Appeal from circuit court, Etowah county; JOHN B. TALLY, Judge.

Action by Danforth & Armstrong, as partners, against the Tennessee &amp Coosa Railroad Company. Judgment for defendant, and plaintiffs appeal. Reversed.

The original complaint contained only three counts, the first of which claimed $2,182.02, on an account stated between the parties on the 1st July, 1888; the second, $11,249.20, less the sum claimed in the first, on an account stated between the parties on the 1st August, 1888; and the third $11,249.20, for work and labor done and goods and chattels sold and furnished by plaintiffs to defendant during the months of June and July, 1888; and each of these counts was afterwards amended by adding the words: "Less one tenth of said amount, being ten per cent., which the defendant was allowed to retain under the contract." A fourth count was offered as an amendment, claiming $100,000 as damages for the defendant's breach of a written contract between the parties which was made an exhibit to the count, and by which plaintiffs undertook and promised to do certain work, and furnished the materials in the construction of a certain portion of the defendant's roadbed and track. This contract, which was dated May 25, 1888, and signed by both parties, specified with great particularity the different kinds of work to be done, the price to be paid for each kind etc.; provided that the work should be done according to estimates furnished by defendant's chief engineer, and be approved by him; that payment for the work done and materials furnished during any one month should be made by the 10th day of the next month, but 10 per cent. might be retained by the defendant until the completion of the work; and that plaintiffs should not sublet any portion of the work without the consent of the defendant's chief engineer, indorsed on the contract. The fourth count, as offered, alleged that when the contract was entered into, the defendant knew that plaintiffs contemplated subletting a portion of the work, and that such subletting was necessary to effect the completion of the work within the time specified; that plaintiffs entered on the work about the 1st of June, sublet a portion of it, and continued to work until the 20th of August according to the estimates and direction of the defendant's chief engineer, making reports and returns to him, which were duly approved for the months of June and July; that they were compelled to discontinue work and abandon the contract on or about the 20th August, because defendant failed to pay the stipulated compensation for the work done during the months of June and July, failed to pay its own current expenses, and suffered attachments to be sued out against its property; whereby plaintiffs have been prevented from completing the work they contracted to do, have been compelled to discharge their subcontractors, have lost the profits which would have accrued from performance, and have been damaged in the sum claimed.

The defendant objected to the allowance of this count, (1) "because it presents an entirely new cause of action:" (2) "because it is a departure from the original complaint;" (3) "because it is in case, while the original complaint is in assumpsit;" (4) "because it is the same as an independent cause of action, for which another suit is now pending in this court between the same parties, which the court has refused to consolidate with this on plaintiffs' motion, and plaintiffs are now seeking to do indirectly what the law prohibits them from doing directly." The court refused to allow this count to be filed as an amendment, but on what ground the record does not show; and the judgment entry further recites that a fifth count was offered and disallowed, though the bill of exceptions states that it was allowed. The plaintiffs then filed seven additional counts, numbered from 6 to 12, inclusive, some of which claimed only the agreed compensation for the work done during the months of June and July, some for the work done up to the 20th August, and others for the profits which would have accrued to plaintiffs from the completion of the entire work. The defendant moved the court to strike out and disallow several of these counts, on the ground that they were, in substance, the same as other counts; and demurred to the ninth count, on the ground that it was in case, and made a misjoinder of counts or causes of action. The court overruled the motion, the objections, and the demurrer.

The defendant had filed three pleas to the original complaint, namely, "the general issue, payment, and accord and satisfaction;" and, after the allowance of the amendments to the complaint, again pleaded (1) the general issue, (2) "not guilty" to the counts numbered from 6 to 12, and two special pleas, as follows: (3) "To that part of the complaint, original and amended, which claims money due for work and labor done, goods, wares, and merchandise sold, and money due on an account stated," that plaintiffs, before the beginning of this suit, had assigned all their interest therein to O'Hearn Bros., a partnership, and are not the parties interested in said money or claim; and this plea was verified by affidavit. (4) "To the original complaint, and to all the counts added by amendment, and which claim or assert any right or claim for damages or profits, and for work and labor done, and for goods, wares, and merchandise furnished, in building that part of defendant's road hereinafter named; and says that plaintiffs ought not to further maintain the same, because plaintiffs subcontracted the construction and building of that portion of the building of said road," describing it, "to Thomas Joseph & Co. and to Wentz & Purple, and these subcontractors did all the work that has been done on that portion of defendant's said road; and that plaintiffs have been paid, since the commencement of this suit, $594.02 in full satisfaction, accord, and settlement, for all claims, damages, or demands they have or had against this defendant, by reason of, connected with, or arising from, the work and labor performed, goods, etc., furnished, damages or profits arising, from that part of the work done on defendant's road, so subcontracted to Thomas Joseph & Co.; and that plaintiffs have been paid, since the commencement of this suit, $460.59 in full accord, satisfaction, and settlement for all claims, damages, and demands they have or had against this defendant, by reason of," etc., the work performed by Wentz & Purple. The plaintiffs demurred to each of these pleas, assigning 12 separate grounds of demurrer to each, all of which were overruled; and the court also overruled a demurrer to the plea of not guilty.

On the trial, C. E. Danforth, one of the plaintiffs, testifying as a witness, stated that they commenced work under the contract on on about the 1st June, and continued to work according to the estimates of the defendant's chief engineer, and under his directions, until about the 20th August, when the work was suspended by order of the president of the railroad company, and it was never resumed; and he proposed to testify as to the amount of different kinds of work which they had done, what the agreed compensation would have amounted to the quantity of work which remained to be done, and the profits they would have realized from the work when completed; also that they had sublet a portion of the work, with the knowledge of the chief engineer, and without objection on his part, to Thomas Joseph & Co., and another portion to Wentz & Purple, each of whom worked according to the estimates of said engineer, and made their returns to him. Each part of this evidence was excluded by the court, on objections of defendant, and plaintiffs excepted; and they also excepted to similar rulings excluding the testimony of J. F. O'Hearn, who had done work for plaintiffs under their contract. The accounts for work done by Thomas Joseph & Co. and Wentz & Purple, subcontractors, duly certified and verified by affidavit, were transferred in August, 1889, before the commencement of this suit, to William Richardson, in consideration of $594.02 for the...