Dunaway v. Roden

• Decision Date: 01 February 1916
• Docket Number: 8 Div. 290
• Citation: 71 So. 70,14 Ala.App. 501
• Parties: DUNAWAY v. RODEN.
• Court: Alabama Court of Appeals

71 So. 70

14 Ala.App. 501

DUNAWAY v. RODEN.

8 Div. 290

Court of Appeals of Alabama

February 1, 1916

Appeal from Circuit Court, Morgan County; D.W. Speake, Judge.

Action by J.H. Roden against A.M. Dunaway. From a judgment for plaintiff, defendant appeals. Affirmed.

Brown J., dissenting on rehearing.

The facts sufficiently appear from the opinion.

The following charges were refused to defendant:

(6) If you find from the evidence that there was an entire contract to bore the well, and that plaintiff did not perform the contract in full, but only in part, then your verdict should be for defendant.

(7) If you believe plaintiff and defendant first made a contract for plaintiff to bore the well for a mule, and that afterwards a new contract was made for the boring of the well, in lieu of the old contract, and if thereby the old contract was abandoned, then I charge you that plaintiff cannot recover anything in this case, either for moving the machinery or for furnishing casing for the well, provided you find plaintiff did not comply with the new contract as made.

(8) If you are reasonably satisfied from the evidence that under the contract made to bore the well, it was stipulated and agreed that plaintiff was to furnish enough water in said well to supply defendant's family and enough for his stock, and that plaintiff did not do this, then, if this is true, plaintiff is not entitled to recover anything in this case for boring said well.

O Kyle, of Decatur, for appellant.

Tidwell & Sample, of New Decatur, for appellee.

THOMAS J.

Action by appellee, as plaintiff below, against appellant, as defendant below, for compensation for boring a well.

The complaint, to which no demurrer was filed, contained four counts, but the second was eliminated by the giving of the affirmative charge for defendant. The refusal of the court to give such charge for defendant as to each of the other counts is the principal error relied on for a reversal.

The first and third counts sought a recovery under a special contract for boring said well, the only difference between the two being that the latter more fully set out the contract; while the fourth count sought a recovery under the common count for work and labor done at plaintiff's request in boring said well, etc. Defendant pleaded the general issue with leave to give in evidence any matter that might be specially pleaded. The contract relied on by plaintiff for recovery was a parol one. He testified:

"In July, 1912, I made a contract with defendant to bore him a well, for which he was to give me a mule [which was shown to be worth $125]. The contract was that I was to bore the well for the said mule and defendant was to pay the cost [$3] of moving my well-boring machinery to his place where the well was to be bored, and was to furnish the casing for said well [shown to have been put in by defendant at a reasonable cost of $2.50]. I was to bore the well such a depth as would furnish water sufficient for defendant's use at his house for his family and for his live stock that was kept on his premises. *** After I moved my well-boring machinery to defendant's premises for the purpose of boring the well and had set up the machinery, I made a new contract with defendant for boring the well. Defendant informed me that, after having made the first agreement about boring the well, he had sold the mule he was to give me for said work, but that he presumed I would just as soon have the money as the mule. To this I assented, and it was then agreed that I was to bore the well and was to receive as compensation 50 cents per foot for boring through dirt and $1 per foot for boring through rock. Nothing was said in this last agreement about the quantity of water I was to furnish. It was simply agreed that I was to get water. I bored the well 72 feet in depth, and 6 of this was through dirt and sixty-six of this was through rock. I bored until I struck water. The day before I quit work on the well, I saw the defendant, *** and he paid me $10, and he told me that the well did not furnish sufficient water, and to work one more day on it and quit. When this new contract was made, my well-boring machinery had been set up on defendant's premises preparatory to begin boring under the original contract. Under the new contract, nothing was said about defendant's paying for the casing of the well, or for the removal of the machinery to his premises."

The defendant insists that under this evidence he was entitled to the affirmative charge as to count 3 of the complaint on account of an alleged variance between allegation and proof, because the count in describing the special contract sued on, which was the new or modified contract, alleged that under it defendant not only was to pay plaintiff 50 cents per foot for dirt and $1 per foot for rock bored through in sinking the well, but was also to pay for the casing of the well and for the cost of removing plaintiff's machinery to the place of boring, while the testimony as set out, it is insisted, afforded no evidence whatever that defendant was to pay for the latter two items.

We cannot so agree. The facts and circumstances are such that the jury might infer that it was the implied intention of the parties that under the new contract--the contract as modified--the defendant was still to pay for the casing of the well and for the removal of the machinery, though nothing was in fact said about either of these things at the time of the modification.

The testimony of the defendant as to the original contract between the parties and as to the facts and circumstances under which it was modified coincides with that of plaintiff. Both agree that under the new or modified contract plaintiff was to get for boring the well, not a mule, as first agreed, but 50 cents per foot for dirt and $1 per foot for rock bored through in sinking the well; and both agree that at the time of this new agreement nothing was said about defendant's paying for the casing of the well and the removal of plaintiff's machinery, as had been formerly agreed to--that is, under the contract as originally made. What is to be inferred from their silence as to these matters? May it not be reasonably implied from their failure to make any change in these stipulations of the old contract, which they were merely modifying, that they intended them to remain as there agreed? In other words, was it not the implied understanding that the old contract was to stand except as to particulars where a change was expressly agreed on?

As to whether it was or not was a question for the jury, and the court did not err in refusing the affirmative charge as to count 3 on any theory of a variance. Nor did the court err in refusing written charge numbered 7 requested by defendant, and which asserted that:

If the jury believed that "plaintiff and defendant first made a contract for plaintiff to bore the well for a mule, and that afterwards a new contract was made for boring the well in lieu of the old contract, and if thereby the old contract was abandoned, then plaintiff could not recover anything either for moving his machinery or for casing the well, provided you find that plaintiff did not comply with the new contract."

The charge, we think, was not only calculated to mislead the jury for reasons just adverted to, but was positively confusing by reason of the concluding paragraph in it, as above italicized. On this account, the charge, as applied to the evidence, is susceptible of the construction that it meant to assert that, although the jury might believe that under the original contract the defendant was to pay for moving plaintiff's machinery and for casing the well, yet, if they further believed that that contract was abandoned and a new contract entered into in lieu of it, which did not require the defendant to pay for moving plaintiff's machinery and casing the well, the plaintiff could not recover anything for either of these things; "provided the jury believed that plaintiff did not comply with the new contract." Upon the hypothesis stated in the charge, the plaintiff was not entitled to recover anything for moving his machinery and casing the well, even though he had complied with the new contract; and yet the charge, by the concluding proviso mentioned, implies that he would, provided he complied with the new contract. The lower court cannot be put in error for refusing a charge which incorrectly states the law, or which is confusing, although its only fault in this particular lies in the fact that it is too favorable to the opposite party. 6 Mayf.Dig. 11, par. 17.

Parties are at liberty to alter or change an executory contract at their pleasure and in any particular they see fit upon no other consideration than mutual assent. 2 Mayf.Dig. 797, § 48.

That the original contract--the terms of which were undisputed--was altered or changed, both parties agree. The extent...