Davis v. Badders

• Decision Date: 06 January 1892
• Citation: 95 Ala. 348,10 So. 422
• Parties: DAVIS ET AL. v. BADDERS ET AL.
• Court: Alabama Supreme Court

10 So. 422

95 Ala. 348

DAVIS ET AL. v. BADDERS ET AL.

Supreme Court of Alabama

January 6, 1892

Appeal from city court of Anniston; THOMAS R. MATTHEWS, Special Judge.

This was an action brought by Badders & Britt against W. A. Davis and others to recover for the building of a residence for the defendants under a contract. Plaintiffs' evidence was that they had substantially complied with the contract, and that they had done extra work at the instance of the defendants, for which, after the execution of said contract and before said work was done, the defendant W. A. Davis agreed to pay plaintiffs; that the work on said house was not completed until about January 21, 1888; that defendant, with plaintiffs' permission, had moved into the house in December, 1887, when only two rooms were finished; that the defendant still occupies said house as a residence. Plaintiffs testified that they were entitled to the certificate of the architects, as provided in said contract and that said certificate was wrongfully withheld by said architects; that after said written contract was entered into there was a subsequent parol contract between the plaintiffs and defendants by which the plans were altered, and that on account of said alteration extra work had to be done on said house, for the doing of which it would take more time to complete said house than was provided for in the written contract; and that the plans and specifications were so altered and extra work done thereunder. Defendants testified plaintiffs had not complied with the contract; that much of the work was poorly done; that inferior material was used and that plaintiffs had departed from the plans without authority, and had abandoned the work before it was completed, and had never obtained the certificate of the architects. The defendant W. A. Davis denied that he had ever agreed to pay for extra work. The court of its own motion among other things, charged the jury as follows: "If the plaintiffs did not comply with the original contract sued on in this case, they are not entitled to recover upon it for the work done under it, unless you find from the evidence that a departure from the original plan and specifications was agreed on between the parties before it was made, and the work as done was performed in lieu of that originally contemplated; but it does not necessarily follow that plaintiffs in this action would not be entitled to recover for such work. If plaintiffs, did the amount of work they have agreed to do under the contract, and it was of value to and accepted by defendants, although it may not have been done in strict compliance with the original plan and specifications, you may nevertheless, under the principles I have submitted to you, find that plaintiffs are entitled to recover under the common counts of the complaint whatever the evidence shows that the work which was done under the contract is reasonably worth, or, rather, the contract price for the work, less the difference in value of the work as done and what it would have been worth had it been done in compliance with the contract; but in no event would they be entitled to recover more than the contract price, although the work so done may be of greater value than was to be paid for it under the contract. To allow plaintiffs to recover what the work was reasonably worth, regardless of the contract price for the work they were to do, might not be any punishment to them for a violation of the contract, if you should find from the evidence that they violated it." The court refused the following charges of defendants: (1) "If the jury believe from the evidence that the contract between plaintiffs and defendant was for the erection of a building upon the land of defendant, and that performance of the terms of the contract was to precede payment, and was the condition thereof, and that plaintiffs have substantially failed on their part to perform the contract, then plaintiffs cannot recover in this action, notwithstanding defendant has chosen to occupy and enjoy the building." (2) "That, if the jury believe from the evidence that the final payment of the contract price of the building depended upon the plaintiffs obtaining the architects' certificate that the work and building was completed according to the contract, then plaintiffs cannot recover in this action unless they show such certificate, or such facts are shown by the evidence as to convince the jury that such certificate is obstinately, unreasonably withheld." (3) "That if the jury believe from the evidence that said building is not completed according to the contract, in a workman-like manner, and that the last payment of seven hundred dollars was only to be made on the certificate of the architects, and such certificate is withheld because of the failure to complete the building in a workman-like manner, and according to the contract, then said certificate is not obstinately unreasonably, or unjustly withheld, and without such certificate plaintiffs cannot recover as to the last payment of seven hundred dollars." (4) "All persons entering into contracts are bound by the terms of the contract, and such contract is the law of the particular case; and if the plaintiffs in this case agreed to do the work strictly in accordance with the plans and specifications in said contract, then they are bound to comply with the requirements of such plans and specifications strictly; and unless the jury is satisfied that said plaintiffs have complied, then they cannot recover without showing to the satisfaction of the jury that such failure to comply on plaintiffs' part has been expressly or impliedly waived by the defendant." (5) "The terms of all contracts unless waived, must be strictly complied with before any party thereto can have a right of action thereon; and the contract in this case stipulating that 'no new work of any description done on the premises, or any work of any kind whatsoever, shall be considered extra, unless a separate estimate in writing for the same before its commencement shall have been submitted by the contractors to the proprietor, and his signature obtained thereto,' then no charge for extra work under the contract in this case can be made or judgment recovered therefor unless said stipulation in said contract has been complied with by the contractor, or the same has been expressly waived or impliedly by the proprietor, the defendant in this cause." (6) "The mere fact that part performance of the contract has been beneficial to the defendant is not enough to render the party benefited liable to pay for the advantage. It must appear from the evidence that he has taken the benefit under circumstances sufficient to raise an implied promise to pay for the work done, notwithstanding the non-performance of the special contract. Therefore in a case of building on land, under a contract which the builders fail to complete, or which they complete in a manner not conforming to the contract, so that the owner cannot be charged with the contract price, the mere fact of the building remaining on the land, and the owner moving into and taking possession of it, and enjoying the fruits of the labor, is not such an acceptance as will alone imply a promise to pay for it, and, without more, plaintiffs cannot recover on the common counts in the complaint in this action." (7) "If the jury believe from the evidence that the last payment of seven hundred dollars depended upon the certificate of Chisholm & Green, the architects, that the work was completed in accordance with the drawings, plans, and specifications, and that such certificate has not been obtained, nor unjustly, unreasonably, nor collusively withheld; and they further find that defendant has paid on said contract twenty-six hundred dollars on the contract price of three thousand dollars; and they further find that plaintiffs have done extra work for which defendant is bound to pay under the stipulations of the contract,-then the defendant is entitled to offset such amount for extra work with the three hundred dollars overpaid to such contractors under said contract." (8) "The plaintiffs are not entitled to recover on the common counts in this case unless the jury believe, from all the evidence, that defendant accepted the work, and went into possession and occupied and used the same, under such circumstances as will amount to an express or implied waiver of the failure upon the part of plaintiffs to perform said contract, and the mere fact of moving in and occupying the house alone is not sufficient to amount to an express or implied waiver." (12) "If the evidence shows that the plaintiff asked no further time to do extra work, defendant is entitled...