Denson v. Kirkpatrick Drilling Co., 6 Div. 993.

• Decision Date: 27 October 1932
• Docket Number: 6 Div. 993.
• Parties: DENSON v. KIRKPATRICK DRILLING CO.
• Court: Alabama Supreme Court

144 So. 86

225 Ala. 473

DENSON v. KIRKPATRICK DRILLING CO.

6 Div. 993.

Supreme Court of Alabama

October 27, 1932

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action of assumpsit by the Kirkpatrick Drilling Company against W A. Denson. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

W. A Denson, of Birmingham, for appellant.

London, Yancey & Brower and Jim C. Smith, all of Birmingham, for appellee.

BROWN J.

Action of assumpsit on the common counts by appellee against appellant for work and labor performed in drilling two holes on coal lands to locate the distance of the seams of coal from the surface and their approximate thickness.

The demurrers of the defendant to the complaint are not addressed to the counts as numbered, but generally "to each and every count of plaintiff's complaint separately and severally," and the judgment on the demurrer is that "the demurrers to each of the common counts are by the court heard and considered, whereupon, it is ordered and adjudged by the court that said demurrers be and they are hereby overruled."

In view of this state of the record, it will not be assumed that the blank forms numbered in the complaint as "Count 2," "Count 4," and "Count 5" were treated as "common counts."

Counts 1, 3, and 6, taken in connection with the concluding averment in the complaint-"which several sums of money, with interest thereon, are now due and unpaid"-are substantially in the form prescribed by the statute, and the demurrers to these counts were overruled without error. Code 1923, § 9531, form 10; Newell Contracting Co. v. Glenn, 214 Ala. 282, 107 So. 801; Hartsell & Son v. Masterson, 132 Ala. 275, 31 So. 616.

The counts held defective in Smythe v. Dothan F. & M. Co., 166 Ala. 253, 52 So. 398, and Gilbert v. Mitchell, 22 Ala. App. 603, 118 So. 495, omitted the averment "from him." This averment appears in count 1 in the case at bar. The counts held defective in Kelly v. Burke, Guardian, etc., 132 Ala. 235, 241, 31 So. 512, did not follow the form prescribed by the Code. The count condemned in Schwartz Motor Co. v. Bradley Real Estate & Ins. Co., 220 Ala. 295, 125 So. 26, 27, did not follow the Code form and was indefinite as to whether the claim for rent accrued under the original lease or the extended lease, and was "lacking in certainty to a common intent as to when the unpaid indebtedness accrued and became due."

Count 4, condemned in Perry & Walden v. Gallagher, 200 Ala. 68, 75 So. 396, declared specially on a simple contract, and was lacking in averment showing a consideration for the contract. Count 2 in that case did not follow the statutory form, in that it omitted the averment that the account declared on was "unpaid."

The defendant's plea 1 interposing to each and every count of the complaint, "separately and severally," that "the matters and things alleged in said count are untrue," is the general issue prescribed by the statute, and put in issue every fact necessary to entitle the plaintiff to recover (Code 1923, § 9470), and while technical error may have been committed in sustaining the demurrers to other pleas, which amounts to a mere denial of the averments of the complaint, it was error without injury. Unnecessary repetition in pleading is not permissible, but where a plea is not defective in substance and is a mere repetition of the general issue, motion to strike is the appropriate method of ridding the record of such pleading. Brooks v. Continental Insurance Co., 125 Ala. 615, 29 So. 13; Hill v. Hyde et al., 219 Ala. 155, 121 So. 510.

The evidence is without dispute that the work and labor, the basis of the plaintiff's claim, was performed under two express contracts stipulating that the drilling was to be done for a specified price per foot, with condition that a specified number of feet were to be guaranteed. Two holes were drilled, and the controversy here arises in respect to the first, designated as "Hole No. 1." As to the second hole there is no dispute in the evidence as to the depth of the hole or the price agreed to be paid, and defendant concedes his liability therefor, and states that the only reason the work performed in drilling the last hole has not been paid for is that the account for drilling this hole was combined with an account for drilling the first, as to which he denied liability on two grounds: First, that the plaintiff had not fully performed the contract; and, second, that the contract was made by plaintiff with him in a representative capacity as the attorney for the "Miller heirs," who owned the lands upon which the drilling was done.

To entitle the plaintiff to recover on the common counts, the burden of proof was on it to show that the contract was made with the defendant, and if the contract was an entire contract, that it was fully performed, leaving nothing to be done except the payment of the agreed price for the work. Dees v. Self Brothers, 165 Ala. 225, 51 So. 735; Jonas v. King, 81 Ala. 285, 1 So. 591; Jos. Joseph & Bros. Co. v. Hoffman & McNeill, 173 Ala. 568, 56 So. 216, 38 L. R. A. (N. S.) 924, Ann. Cas. 1914A, 718. And it was defendant's right, under the plea of the general issue, to show that he was not a party to the contract; that he had authority as the agent of a definite party or parties whose identity was made known to the plaintiff; and that such party or parties were accepted as the persons liable therefor (Dexter v. Ohlander, 89 Ala. 262, 7 So. 115; Humes v. Decatur Land Imp. & Furnace Co., 98 Ala. 461, 13 So. 368; Anderson v. Timberlake, 114 Ala. 377, 22 So. 431, 62 Am. St. Rep. 105; Murphy v. Barnard, 162 Mass. 72, 38 N.E. 29, 44 Am. St. Rep. 340; 21 R. C. L. 895, § 69); or, on the other hand, if the contract was made between the plaintiff and defendant, that it was an entire contract and that the plaintiff had not fully performed the contract. Therefore, the sustaining of demurrers to defendant's special pleas alleging that the contract was not made by him, and pleas alleging that plaintiff had not fully performed the contract, along with other matters not constituting a defense, was not error. Moreover, proof of facts necessary to sustain such pleas was admissible under the general issue. Bibby v. Thomas, 131 Ala. 350, 31 So. 432; Stephenson v. Wright, 111 Ala. 579, 20 So. 622; Beall v. James Folmar Sons & Co., 122 Ala. 414, 26 So. 1; Mitcham & Smith v. Moore, Adm'r, 73 Ala. 542.

Recoupment must be specially pleaded and with the same certainty as is required to state a cause of action in a complaint. J. C. Lysle Milling Co. v. North Alabama Grocery Co., 201 Ala. 222, 77 So. 748.

Defendant's pleas 8, 9, 10, 11, and 12 were patently defective in failing to state the terms and conditions of the contract, and the demurrers thereto were properly sustained.

The plaintiff's first witness, Alsmiller, testified that in the early part of 1928 he was plaintiff's bookkeeper, in charge of its office during the months of January and February, and up until the 15th of March; that he wrote the letter dated January 4, 1928, referred to in the bill of exceptions as "Plaintiff's Exhibit A"; that "it was addressed to Mr. W. A. Denson with an envelope addressed to W. A. Denson, Title Guarantee Building, Birmingham, Alabama, and put in the mail." On this predicate, without more, the court overruled the defendant's timely objection on the ground that: "Said letter is incompetent, irrelevant, immaterial and illegal, not within the issues raised in the pleadings in this case; not shown when W. A. Denson received said letter; not shown from whom W. A. Denson received said letter; it is not shown that W. A. Denson ever signed that agreement which this letter purports to be, or ever accepted the same; it is not shown to be signed by any one having authority to represent the plaintiff in this case, it is not shown to have ever been delivered to W. A. Denson by any one having authority to represent the plaintiff in this case." (Italics supplied.)

The letter does not purport to be a written confirmation of a previous oral agreement between the parties, but is in form an original proposition stating terms "with reference to the drilling at Palmer, Tennessee," which was "talked over" in defendant's office the day previous to the date of the letter, and is signed at the foot thereof, "Kirkpatrick Drilling Co., By Sol Rudolph," with the word "Accepted: __________," written to the left of such signature.

There is nothing in the predicate, and, as for that matter, in the evidence as a whole, going to show that the plaintiff relies on a contract evidenced by mutual correspondence between the parties, and it is familiar law that an unsigned writing drawn by one of the parties as expressing the terms of a contract, which on its face evinces the intention that it is to be signed to become a binding obligation, in the absence of evidence showing that the writing was accepted and acted on between the parties as expressing the terms of a contract, should not be admitted as proof of the terms of such contract. Vastbinder v. Metcalf, 3 Ala. 100; Rutherford's Adm'rs v. Branch Bank at Mobile, 14 Ala. 92; McGowin Lumber & Export Co. v. R. J. & B. F. Camp Lumber Co., 192 Ala. 35, 68 So. 263.

We therefore hold that the grounds of objection italicized were well taken, and the court erred in overruling the objection and admitting the letter on the predicate established by Alsmiller's testimony.

Whether or not the testimony subsequently offered afforded a sufficient predicate for the admission of the letter and rendered this erroneous ruling innocuous is another question.

Plaintiff's counsel stated, at the time the letter Exhibit A was offered "this is one of the letters that was delivered...