Fidelity & Deposit Co. of Maryland v. Robertson

• Decision Date: 10 February 1903
• Citation: 136 Ala. 379,34 So. 933
• Parties: FIDELITY & DEPOSIT CO. OF MARYLAND v. ROBERTSON. [a1]
• Court: Alabama Supreme Court

34 So. 933

136 Ala. 379

FIDELITY & DEPOSIT CO. OF MARYLAND v. ROBERTSON. ^[a1]

Supreme Court of Alabama

February 10, 1903

Appeal from Circuit Court, Montgomery County; A. H. Alston, Judge.

Action by W. T. Robertson against the Fidelity & Deposit Company of Maryland. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Adams Wright & Gossett contracted with Robertson to build him a house, and the bond for the breach of which the present suit is brought was executed as security that they would carry out their said contract. The original suit contained the common counts and a special count. A demurrer was sustained to the special count. By amendment a third count was added. Subsequently the common counts were withdrawn. The third count set out as exhibits the contracts between Adams, Wright & Gossett and Robertson and the bond sued on. The part of the contract and of the bond sufficient to an understanding of the decision on the present appeal are sufficiently shown in the opinion.

The third count, omitting the contract and bond, was in words and figures as follows:

"Third. The plaintiff claims of the defendant two thousand dollars as damages for the breach of the condition of a bond made by the defendant the Fidelity & Deposit Co., a corporation and by T. J. Adams, W. C. Wright, and A. J. Gossett, doing business under the firm name of Adams, Wright &amp Gossett,--the three last-named persons not being sued in this action,--payable to the plaintiff, in the sum of $2,000, and which is in words and figures as follows (Exhibit A). And plaintiff avers that on the 26th day of April, 1897, the said Adams, Wright & Gossett, a partnership composed as aforesaid, entered into a written contract with plaintiff, which in express terms is referred to and made a part of the contract hereinabove set out between this plaintiff and the Fidelity & Deposit Co. which said contract between plaintiff and the said Adams, Wright & Gossett is in words and figures as follows (Exhibit B). Plaintiff avers that said contract hereinabove particularly set forth entered into by and between plaintiff and said Adams, Wright & Gossett, as aforesaid, was incorporated with and made a part of said contract between plaintiff and this defendant, the Fidelity & Deposit Co., of date May 5th, 1897, wherein said defendant guarantied the faithful performance of the stipulation of said contract with Adams, Wright & Gossett as aforesaid. And plaintiff avers that the conditions of said bond were broken by defendant in this:

"(1) The said Adams, Wright & Gossett did not furnish all the labor, materials, and other things requisite to do and perform all things contemplated by said contract of date the 26th April, 1897, and did not furnish the labor, materials, and other things requisite to build, finish, and deliver said house on or before the 1st day of Sept., 1897, and plaintiff claims special damage of $5.00 per diem for such delay as stipulated in said contract.

"(2) That said Adams, Wright & Gossett did not, on or before the 1st day of September, 1897, sufficiently erect, finish, and deliver in a perfect and thoroughly workmanlike manner a dwelling house for plaintiff agreeably to the plans and specifications made for the same, and under the superintendence of Lockwood Bros., architects.

"(3) That said Adams, Wright & Gossett did not provide such good, proper, and sufficient material of all kinds whatsoever as were proper and sufficient for the completing and finishing all the works of the said building as shown on the plans and mentioned in said specification.

"(4) That said Adams, Wright & Gossett did, during the progress of the construction of said building, fail or refuse to supply a sufficiency of workmen and material, and thereby caused an unreasonable delay or suspension of the work, and did fail or refuse to comply with said articles of agreement as heretofore set forth; whereby plaintiff, under the terms of said contract, was authorized to finish said work of construction of said building.

"(5) And plaintiff avers that he did give the notice, as required by the said contract, as aforesaid, and did enter upon and finish the construction of said building in accordance with said contract, to plaintiff's damage as aforesaid; and wherefore plaintiff avers that by reason of said breach of said contract as hereinabove particularly set forth and assigned he was damaged in the sum of $2,000; that he has demanded of defendant a settlement of said damages sustained, and said demand was refused. Wherefore plaintiff sues."

To the third count the defendant demurred upon several grounds which may be summarized as follows: (1) It is alleged in the breach marked "1" that Adams, Wright & Gossett did not furnish "all the labor, materials, and other things requisite to do and perform all things contemplated by said contract," but is not alleged in what particular or particulars the said Adams, Wright & Gossett failed. (2) It is not alleged in breach marked "1" what it was Adams, Wright & Gossett failed to furnish, whether labor, materials, or other things. (3) The allegations of said breach marked "1" are legal conclusions, without the statement of any facts. (4) It is not alleged in breach marked "2" in what particular or particulars the said Adams, Wright & Gossett failed to sufficiently erect, finish, and deliver said house. (5) From the allegations of said breach marked "2" it does not appear that Adams, Wright & Gossett did not erect and finish said house, but that, although finished and erected, they did not deliver said house. (6) It is not alleged in any part of the said count that plaintiff complied with this part of said contract with Adams, Wright & Gossett. (7) The allegations of each of the breaches are legal conclusions, without facts stated upon which to base them. (8) It does not appear from the allegations of the breach marked "3" that Adams, Wright & Gossett did not "provide good, proper, and sufficient material of all kinds whatsoever as were proper and sufficient for the completing and finishing all the works of said building," but, although they did provide all such material, it was not shown by the plans and specifications. (9) It is not shown from the allegations of the breach marked "3" in what particular or particulars said Adams, Wright & Gossett failed to provide materials. (10) It is not shown in breach marked "4" in what particular or particulars said Adams, Wright & Gossett failed or refused "to comply with the articles of agreement as heretofore set forth." (11) It is not alleged in the breach marked "5" what the notice given by plaintiff contained, nor the substance of said notice, nor to whom it was given. (12) It is not alleged in said count that plaintiff immediately or otherwise notified defendant of the failure of said Adams, Wright & Gossett to perform their said contract when the said failure came to the knowledge of plaintiff or his authorized representative. (13) It is not alleged in said count that, after notice of the failure of Adams, Wright & Gossett to perform said contract, defendant refused to perform this same.

This demurrer was overruled, and the defendant duly excepted. Thereupon the defendant filed 16 pleas, the first of which was the general issue. The other pleas filed by the defendant were in words and figures as follows:

"(2) That it is provided in and by the terms of said bond that the defendant should be notified in writing of any act on the part of the said Adams, Wright & Gossett, or their agents or employés, which might involve a loss for which the said defendant may be liable immediately after the occurrence of such act shall have come to the knowledge of the duly authorized representatives of the said W. T. Robertson who shall have supervision of the completion of said contract; and defendant avers that the said W. T. Robertson failed immediately upon the same coming to the knowledge of the authorized representatives of the said W. T. Robertson to notify this defendant of said acts, or either of them, on the part of the said Adams, Wright & Gossett complained of in said complaint as breaches of said bond.

"(3) That the said plaintiff, by his own unauthorized act, prevented the said Adams, Wright & Gossett from completing said contract.

"(4) That in and by the terms of said bond the contract between the plaintiff and said Adams, Wright & Gossett was, with all its terms, conditions, and covenants, made a part of said bond, and in and by the terms, conditions, and covenants of said contract it was provided that the payment of said plaintiff for said work to the said Adams, Wright & Gossett should be made in six equal payments, and the total amount to be paid was $3,450.20, and that from all payments there should be reserved 15 per cent., to be paid 30 days after the completion and delivery of the work, and that payments should be made upon the certificate of the architects of the said plaintiff; and defendant avers that the said plaintiff paid to the said Adams, Wright & Gossett money on said contract before the same was due under said contract, and without the certificate of said architects, and without deducting said 15 per cent., whereby said plaintiff failed to retain in his hands sufficient funds to complete the said contract.

"(5) This defendant denies that the plaintiff rightfully or lawfully took charge of and finished said work.

"(6) This defendant denies that the plaintiff was put to any cost over the contract price in the completion of said contract.

"(7) That under and by the terms of the bond sued on, it was provided, among other things, that suits at law or proceedings in equity brought against this defendant to recover any claim thereunder must be entered

...