Fite v. Pearson, 6 Div. 711

CourtSupreme Court of Alabama
Writing for the CourtTHOMAS, J.
Citation111 So. 15,215 Ala. 521
Docket Number6 Div. 711
Decision Date04 November 1926
PartiesFITE v. PEARSON et al.

111 So. 15

215 Ala. 521

FITE
v.
PEARSON et al.

6 Div. 711

Supreme Court of Alabama

November 4, 1926


Rehearing Denied Jan. 22, 1927

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action by Fred Fite against J.H. Pearson and the United States Fidelity & Guaranty Company. Plaintiff takes a nonsuit, and appeals from adverse rulings on pleading. Reversed and remanded.

Stokely, Scrivner, Dominick & Smith, of Birmingham, for appellant.

Coleman, Coleman, Spain & Stewart, of Birmingham, for appellees.

THOMAS, J.

The appeal is predicated upon the record proper, and challenges the sustaining demurrers to the amended counts of the complaint. Nonsuit was entered because of said adverse ruling in sustaining demurrer to count A of the complaint.

The demurrer filed by defendant United States Fidelity & Guaranty Company, among other things, was grounded on the fact that the plaintiff was not a party to said general plumber's bond, and that there was no contractual relationship between the plaintiff and the defendant. And on this theory it is stated in the argument of counsel that demurrers were sustained, and the demurrer raising the question of the lack of privity of the contract will be considered.

The parties sui juris have the right, within the law, to prescribe the limitation of contracts by which they will be bound; and their words, if unambiguous, will be given their ordinary and generally accepted meaning. Such is the rule, unless the contrary is made to appear in the contract. Ill. Surety Co. v. Donaldson, 202 Ala. 183, 79 So. 667; Lee v. Cochran, 157 Ala. 311, 47 So. 581.

It has been often times declared, in this jurisdiction, that, if one person makes a promise to another for the benefit of third parties, such beneficiary may maintain action upon the promise, though the consideration does not move from the latter. Alabama City Co. v. Kyle, 204 Ala. 597, 87 So. 191; Farrell v. Anderson Co., 211 Ala. 238, 100 So. 205; Alabama Power Co. v. Hamilton, 201 Ala. 62, 77 So. 356; Pugh, Stone & Co. v. Barnes, 108 Ala. 170, 19 So. 370; Georgia Home Ins. Co. v. Boykin, 137 Ala. 366, 34 So. 1012; Moore v. First National Bank, 139 Ala. 595, 36 So. 777; Potts v. First National Bank, 102 Ala. 286, 14 So. 663; North Alabama Dev. Co. v. Short, 101 Ala. 333, 13 So. 385; Young v. Hawkins, 74 Ala. 373; Carver v. Eads, 65 Ala. 190; [111 So. 16.] Henry v. Murphy, 54 Ala. 246; Huckabee v. May, 14 Ala. 263. See, also, Moore v. Williamson, 213 Ala. 274, 104 So. 645, 42 A.L.R. 981.

This was the legal effect of the plumbers' bond required by the ordinance of the city--to be a bond obligation on principal and sureties for the use of any person injured on account of a breach of the terms thereof. Deason v. Gray, 192 Ala. 611, 69 So. 15; Deason v. Gray, 189 Ala. 672, 66 So. 646; Coleman v. Roberts, 113 Ala. 329, 21 So. 449, 36 L.R.A. 84, 59 Am.St.Rep. 111; Albright v. Mills, 86 Ala. 324, 5 So. 591; Kelly v. Moore, 51 Ala. 364.

The pertinent provisions of the contract or bond are:

"(1) Now, if the said J.H. Pearson shall faithfully observe all ordinances in the city pertaining to plumbing and draining excavations and blasting, and all rules and regulations
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25 practice notes
  • Union Indemnity Co. v. Webster, 6 Div. 950
    • United States
    • Supreme Court of Alabama
    • October 25, 1928
    ...indicated in such bond. Section 2612, Code; Bradford v. State, 201 Ala. 170, 77 So. 696; Id., 204 Ala. 46, 85 So. 435; Fite v. Pearson, 215 Ala. 521, 111 So. 15. The provisions of section 5718 (Gen Acts of 1915, p. 605) and those of section 9513 of the Code are consistent as to amendment of......
  • American Book Co. v. State, 3 Div. 801
    • United States
    • Supreme Court of Alabama
    • June 15, 1927
    ...were for the benefit of the state and its citizens. Ala. Power Co. v. Hamilton, 201 Ala. 62, 77 So. 356; Fite v. Pearson et al. (Ala.Sup.) 111 So. 15. Waiving for the moment a construction of the term inserted in the contract, we now refer to the ground of demurrer challenging the sufficien......
  • Ingram v. Evans, 7 Div. 98.
    • United States
    • Supreme Court of Alabama
    • March 16, 1933
    ...color of his office. Section 1905, Code; Ex parte Martin, supra; Deason v. Gray, Sheriff, 189 Ala. 672, 675, 66 So. 646; Fite v. Pearson, 215 Ala. 521, 522, 111 So. 15, and authorities cited; Pickett v. Richardson, supra; Union Indemnity Co. v. Webster, 218 Ala. 468, 118 So. 794; Harbin v. ......
  • Burgreen Contracting Co., Inc. v. Goodman
    • United States
    • Alabama Court of Civil Appeals
    • April 30, 1975
    ...Co. of Alabama et al., 237 Ala. 665, 188 So. 896; Employers Ins. Co. of Alabama v. Johnston, 238 Ala. 26, 189 So. 58; Fite v. Pearson, 215 Ala. 521, 111 So. 15; Tennessee Coal, Iron & Railroad Co. v. Sizemore, 258 Ala. 344, 62 So.2d 459; Mutual Benefit Health and Accident Ass'n of Omaha v. ......
  • Request a trial to view additional results
25 cases
  • Union Indemnity Co. v. Webster, 6 Div. 950
    • United States
    • Supreme Court of Alabama
    • October 25, 1928
    ...indicated in such bond. Section 2612, Code; Bradford v. State, 201 Ala. 170, 77 So. 696; Id., 204 Ala. 46, 85 So. 435; Fite v. Pearson, 215 Ala. 521, 111 So. 15. The provisions of section 5718 (Gen Acts of 1915, p. 605) and those of section 9513 of the Code are consistent as to amendment of......
  • American Book Co. v. State, 3 Div. 801
    • United States
    • Supreme Court of Alabama
    • June 15, 1927
    ...were for the benefit of the state and its citizens. Ala. Power Co. v. Hamilton, 201 Ala. 62, 77 So. 356; Fite v. Pearson et al. (Ala.Sup.) 111 So. 15. Waiving for the moment a construction of the term inserted in the contract, we now refer to the ground of demurrer challenging the sufficien......
  • Ingram v. Evans, 7 Div. 98.
    • United States
    • Supreme Court of Alabama
    • March 16, 1933
    ...color of his office. Section 1905, Code; Ex parte Martin, supra; Deason v. Gray, Sheriff, 189 Ala. 672, 675, 66 So. 646; Fite v. Pearson, 215 Ala. 521, 522, 111 So. 15, and authorities cited; Pickett v. Richardson, supra; Union Indemnity Co. v. Webster, 218 Ala. 468, 118 So. 794; Harbin v. ......
  • Burgreen Contracting Co., Inc. v. Goodman
    • United States
    • Alabama Court of Civil Appeals
    • April 30, 1975
    ...Co. of Alabama et al., 237 Ala. 665, 188 So. 896; Employers Ins. Co. of Alabama v. Johnston, 238 Ala. 26, 189 So. 58; Fite v. Pearson, 215 Ala. 521, 111 So. 15; Tennessee Coal, Iron & Railroad Co. v. Sizemore, 258 Ala. 344, 62 So.2d 459; Mutual Benefit Health and Accident Ass'n of Omaha v. ......
  • Request a trial to view additional results

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