E.E. Shafer & Co. v. Hausman

• Citation: 35 So. 691,139 Ala. 237
• Court: Supreme Court of Alabama
• Decision Date: 18 December 1903
• Parties: E. E. SHAFER & CO. v. HAUSMAN.

35 So. 691

139 Ala. 237

E. E. SHAFER & CO. v. HAUSMAN.

Supreme Court of Alabama

December 18, 1903

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Action by E. E. Shafer, doing business as E. E. Shafer & Co. against D. S. Hausman. From a judgment for defendant plaintiff appeals. Affirmed.

The complaint contained the common counts, and also a special count claiming the sum of $200 due upon an agreement in writing, which, as stated in the opinion, was an order from S. L. Smith to the defendant to pay the plaintiff $200 for brickwork on defendant's houses, and which was indorsed as accepted by the defendant. The cause was tried upon the plea of the general issue. The evidence showed that S. L Smith was the original contractor with the defendant for the construction of some houses, and that the plaintiff, E. E Shafer & Co., were subcontractors for said Smith. That in the contract with Smith it was stipulated that the amount agreed to be paid him was to be paid in installments, upon estimates furnished by the architects. That, a few days after the fourth estimate had been made, the defendant was handed the following order: "Mr. Hausman. Pay Mess. E. E. Shaffer &amp Co. $200.00 for brick work on your houses on Montgomery St and charge the same to fifth estimate and oblige, [Signed] S. L. Smith. August 3d, 1901." Upon this order there was the following indorsement: "This amount will be retained out of the fifth estimate when it is due, and it is accepted on that condition. [ Signed] D. S. Hausman. Aug. 3d, 1901." The evidence further tended to show that a few days after this order was given to E. E. Shafer & Co., and presented to the defendant, Hausman, the contractor, Smith, notified the defendant and the architect that he would not be able to finish the work according to the contract, and would have to give up the work; that thereafter there was a meeting of the creditors of S. L. Smith in defendant's office, at which the defendant, the architect, and S. L. Smith were present; that the manager of E. E. Shafer & Co. was also present; that at this meeting Hausman stated that Smith had decided to give up the work, and that therefore he would complete the buildings under his own direction, employing the labor and buying the material himself, and that no more estimates were to be furnished by the architect, and that, if there was any surplus remaining after the completion of the buildings, he would prorate the amount among the creditors of said Smith; that thereupon the houses were completed in accordance with this arrangement and as a matter of fact no fifth estimate or any other estimate was furnished to Hausman, and that it took more than the balance due at the time of the creditors' meeting to complete the said building, and that therefore there was no surplus left. In rebuttal the plaintiff introduced witnesses who testified that they were present at the meeting of the creditors of Smith in Hausman's office, and that at this meeting the plaintiff declined to prorate with the other creditors of Smith, saying that he would lose all rather than prorate. During the examination of Ausfeld, who was the architect for said buildings, he was asked by the defendant the following question: "Was it not the agreement between plaintiff and the defendant, at Hausman's office, that he would accept a prorate of what should be left after the houses were completed?" The plaintiff objected to this question, upon the ground that it called for illegal, irrelevant, and incompetent evidence, and upon the further ground that it called for the conclusions of the witness. The court overruled the objection, and the plaintiff duly excepted. The witness answered that this was the agreement. Thereupon the plaintiff moved to exclude this answer of the witness, upon the same grounds upon which the objection to the question was based. The court overruled the...