Fite v. Pearson

• Decision Date: 04 November 1926
• Docket Number: 6 Div. 711
• Parties: FITE v. PEARSON et al.
• Court: Alabama Supreme Court

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; 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 established under the authority of such ordinances, and shall do all of said plumbing, and drain laying work in a workmanlike manner. *** (2) And any person, firm, or corporation injured in person or property by reason of any violation of said ordinances or regulations or any breach of this bond, as aforesaid, may maintain a suit or action hereon for such injury and several recoveries may be had hereon to the amount of this bond."

The final paragraph of the ordinance entering into the bond and relations of the three parties thereto is:

"That all plumbing and drain laying work done by such person, firm, or corporation, or under his or their bond or license, shall be executed in a workmanlike manner and to indemnify and save harmless the city of Birmingham from any and all liability or damages from all accidents, damages, or loss which any person, firm, or corporation may suffer either in person or property, or of any character whatsoever caused by or arising from, in or about the doing of such work in said city by any such person, firm, or corporation, or its, his, or their agents or employees.

"Said bond shall also be for the benefit of all persons injured or damaged by any violation or neglect of said plumbers or drain layers of their agents or employees to observe the ordinances of said city or the rules and regulations established under the authority of such ordinances, and said bond shall be renewed at intervals of two years or oftener at the demand of the plumbing inspector, if in his judgment the security shall be impaired or insufficient; otherwise, to remain in full force and effect until terminated by notice. Said bond shall further provide that any person, firm, or corporation injured on account of any breach of said bond, or on account of any violation of any of the plumbing laws of the city of Birmingham or any rules or regulations adopted pursuant thereto, may sue

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