Fike v. Stratton

• Decision Date: 20 April 1911
• Citation: 56 So. 929,174 Ala. 541
• Parties: FIKE v. STRATTON.
• Court: Alabama Supreme Court

56 So. 929

174 Ala. 541

FIKE v. STRATTON.

Supreme Court of Alabama

April 20, 1911

Rehearing Granted Dec. 21, 1911.

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by Edward G. Fike against Georgia K. Stratton to enforce a materialman's lien. From a judgment for insufficient damages, plaintiff appeals. Affirmed.

The complaint declares for $1,015 on account for work and labor and for materials furnished in remodeling and improving a residence. The complaint sets forth property on which the lien is claimed, with the further averment that the plaintiff was the original contractor with the defendant or her agent for doing the work, and that the defendant is owner of the premises, and that the work was done under a contract between the owner or her agent and the said Fike as the original contractor, and that the contract was for the remodeling and completion of said residence and for doing other work. Then follows a statement as to the filing of the verified statement, etc.

Plea was as follows:

"And for further plea in this behalf, defendant says that the work done and materials furnished and put upon the property of the defendant was done and furnished under the terms of a written contract made and entered into by and between plaintiff and defendant on September 1, 1906, and in which said written contract, a copy of which is made 'Exhibit A' to this plea, it was stipulated that the painting of the exterior of the building to be remodeled and enlarged was to be substantially and in accordance with the painting upon the exterior of an adjacent residence of defendant and this obligation of said written contract was broken by the plaintiff, in that he had failed and refused to so paint the house he contracted to remodel and enlarge, and the defendant avers that the costs of doing this painting in accordance with the contract amounts to the sum of $143. And defendant further avers that, in accordance with the terms of said written contract, the exterior doors upon said building were to be what is known as 'built-up doors,' but the defendant avers that the exterior doors put in said house by plaintiff were not built-up doors, and the defendant avers that the contract required the placing of six built-up doors, and that the difference in the value of six doors as furnished by the plaintiff and the built-up doors he was required to furnish under the contract was $2.50 each, making a total of $15. And the defendant further avers that, under the terms of said written contract, the said six built-up exterior doors were to be hung upon three 5X5 bronze butts, but the defendant avers that these doors were not so hung, being hung on two butts to the damage of defendant in the sum of $3. And defendant avers that in said contract it was stipulated that the lock sets upon the six doors next above referred to were to cost not less than $8 each. * * * The defendant avers that the lock set on the door at the entrance to the building cost about $6, instead of $8, as specified in said written contract, and the lock sets placed upon the other five doors cost approximately 50 cents each per set, causing a loss or damage to the plaintiff in the sum of $39.50. And the defendant avers that, according to the terms of the said written contract, all exterior work upon the building to be remodeled and enlarged was to be of cypress lumber, and defendant avers that the work upon the exterior as done by the plaintiff was in pine wood and in violation of said contract to the damage of the defendant in the sum of $50. The defendant avers that two front windows were not put in by plaintiff according to the specifications forming a part of said written contract, and the change made and contracted for by the defendant to comply with the specifications will cost the defendant the sum of $65. Defendant avers that, under the terms of the said written contract, the plaintiff was to furnish a bathtub as specified, and plaintiff failed or refused to put in place, or rather to furnish this bathtub to the damage of the defendant in the sum of $62.50. And the defendant avers that, under the terms and condition of the said written contract, plaintiff was to furnish lavatories, which he refused and neglected to do, to the damage of the defendant in the sum of $18. And the defendant avers that, under the terms and conditions of the said written contract, the front door to said building and the windows were to be plate glass, but the defendant avers that the glass put in said front door and into said windows was not in accordance with said contract, to the damage of the defendant in the sum of $24, and the defendant claims further damages from the fact that the specifications forming a part of said contract have not been followed, but, on the contrary, departed from, and numerous substitutions have been made for materials specified in said specification, to the damage of the defendant in the sum of $200. Wherefore the defendant claims said sum of $620 in the aggregate of the breaches of said contract by the plaintiff as in this plea shown, as a recoupment against the demand of the plaintiff.

"(3) And for further plea in this behalf defendant says to the entire complaint that under the terms and conditions of a certain written contract entered into by and between the plaintiff and the defendant, a copy of which is made 'Exhibit A' to this plea, it was agreed that said work is to be completed and the building turned over to said Hamilton or his principal on or before the 20th day of December, 1906. Should said building not be turned over complete, said Hamilton may retain out of the compensation hereinabove provided for the sum of $10 a day until the building is so turned over, delays beyond contractor's control excepted. And the defendant avers that the contract in question was dated September 1, 1906, and said stipulation above set out was agreed upon as liquidated damages for failure to turn over and complete said building in accordance with said written contract, and the defendant avers that the plaintiff has not to this day completed the said building according to the contract, and did not turn over the keys of the same to her or her agent until the last part of July, 1907, wherefore the defendant claims that the plaintiff under said provision of said contract was indebted to her in the sum of $1,000 as liquidated damages for failure to complete and turn over to her or her agent said building within the time agreed upon, and forming a part of the essence of the said written contract. Wherefore the defendant claims and demands a recoupment against the demand of the plaintiff, the aggregate of the sums set up and claimed by the defendant against the plaintiff in her pleas numbered 2 and 3 amounting to $1,620, and she claims judgment for the excess."

The demurrers to plea 2 were that the contract is not set out literally or in substance, because it purports to be a plea of set-off, and does not describe the defendant's demand by its date, nor state when the same was payable, nor to whom payable; and because it does not show that at the time the action of plaintiff was commenced that plaintiff was indebted to the defendant in any sum whatsoever. Demurrers were also interposed to each special plea for damages in such case (1) because it is not shown that the plaintiff obligated himself to do the particular thing alleged to have been left undone, or to do them differently from the way they were done, and because the matters set up are not the proper measure of damages. Demurrers were interposed to the third plea on practically the same grounds as above set forth, and because the plea claims for certain damages for failure to turn over a certain building to the defendant within a certain time, and does not show any data by which any damages could be arrived at, nor does it show any contract obligating plaintiff to pay any special damages; because it alleges time as the essence of the contract, and does not show the terms of the contract whereby the court may determine whether or not time is of its essence. It may be remarked that the contract was attached as an exhibit to both pleas. These pleas were afterwards amended so as to include the written contract therein, and the allegations of the pleas were somewhat enlarged, but no material change was made.

The third clause in the contract was as follows: "Said work is to be completed and the building to be turned over to said Hamilton or his principal on or before the 20th day of December, 1906. Should said building not be turned over complete, said Hamilton may retain out of the compensation hereinbefore provided for the sum of $10 per day until the building is so turned over, delays beyond contractor's control excepted." The following are replications 10 and 11:

"(10) Plaintiff said in replication to the third and fourth pleas that his failure to complete and turn over the dwelling house to the defendant, mentioned in this contract, the basis of this suit, within the time ending December, 20, 1906, was not a breach of said contract, in this: that all the delay after the date in so completing and turning over said dwelling house to defendant was beyond plaintiff's control.

"(11) Plaintiff for replication to the third and fourth pleas says that his failure to complete and turn over to the defendant the dwelling house mentioned in the contract, the basis of this suit, within the time ending December 20, 1906, was not a breach of said contract, in this: That the contract provided that delays beyond the contractor's control were excepted from the time for which he was chargeable with damages, and plaintiff says that all the delays after that said date in so completing and turning over said

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