Fox v. Webb, 1 Div. 745

Decision Date11 September 1958
Docket Number1 Div. 745
Citation67 A.L.R.2d 1007,268 Ala. 111,105 So.2d 75
Parties, 67 A.L.R.2d 1007 John D. FOX, Jr. v. Julius Clarence WEBB et al.
CourtAlabama Supreme Court

Telfair J. Mashburn, Jr., Bay Minette, for appellant.

J. B. Blackburn, Bay Minette, amicus curiae.

W. O. MacMahon, III, Mobile, and Chason & Stone, Bay Minette, for appellees.

STAKELY, Justice.

On the 20th day of September, 1955, John D. Fox, Jr. (appellant), as contractor, and Julius Clarence Webb (appellee) as purchaser, signed a building contract for the contruction of a house to be built in Daphne, Alabama, on a lot jointly owned by Webb and his wife, Leila Glover Webb. As the work proceeded Webb became dissatisfied with the quality of the contractor's work and his failure to conform to the plans and specifications and when Fox terminated his work on the house, still refusing to make changes demanded of him, Webb withheld the last payment.

The contract shows that the agreed price was $8,750. And it is agreed that the amount paid by Webb was $6,171.50. This leaves a remainder of $2,578.50, which Webb refused to pay.

The trial court found, and we think properly so, that the dwelling was not constructed in a workmanlike manner so as to substantially conform to the plans and specifications. To mention a few particulars, the court found as follows. The porch and carporte were to have 'C Pine ceiling finish & three ct's L&O.' Instead it was finished with quarter inch plywood. The hall walls were to be panel pine. Instead they were sheetrock. The counter tops in the kitchen were to be formica over fir plywood. Instead a different material was used over 1/4"' plywood, which was criticized during the trial as being 'unworkmanlike.' There were other unworkmanlike defects such as the roof sagged where a rafter had been spliced and not braced, walls were not plumb, tile in kitchen was bottom side up, ceramic tile in the bathroom was improperly installed, and a long board which had been nailed outside the diagonal sheeting had not been removed before the asbestos siding was installed, thus creating an unsightly ripple.

Fox terminated his work on the house in May of 1956, and on June 5, 1956, filed a lien claim on the house and lot in the probate court for $2,736.06 and on June 6, 1956, filed his bill of complaint in the circuit court for an equal amount. Attached to the bill as Exhibit A and made a part thereof is the contract between the parties, and as Exhibit B the claim of the lien filed in the probate court the previous day. Both Webb and his wife were named as respondents. They in turn filed a cross bill asking for damages in the amount required to complete the house in accordance with the plans and specifications set out in the contract.

The trial court entered a final decree in which he awarded Fox $2,578.50, the remainder due under the contract plus $147.90 for extras, a total of $2,726.40. The court also awarded to Webb damages in the amount of $3,798.54, which left a difference of $1,072.14 and Fox was ordered to pay this amount to Webb.

On this appeal Fox submits three assignments of error:

'1. The Court erred in sustaining appellees' demurrer to the appellant's original bill of complaint.

'2. The Court erred in rendering the Final Decree in this cause dated May 22, 1957.

'3. The Court erred in denying the relief sought by appellant in his bill of complaint as last amended.'

I. We shall consider the third and first assignments first. So far as the third assignment of error is concerned, the decree awarded to Fox the relief for which he prayed. It was only due to the fact that Webb's award was greater than the award to Fox that the final decree requires Fox to pay the difference to Webb.

The original bill of complaint alleged that both respondents entered into a contract with complainant and yet Exhibit A, the contract, shows on its face that only Webb had signed it. The original paragraph 3 contains the following allegation:

'That on, to-wit: the 20th day of September, 1955, your complainant entered into a written contract with the respondents, a copy of which marked Exhibit 'A' is attached hereto, and by reference made a part hereof as though fully set out herein. * * *.'-- (Emphasis supplied.)

The demurrer filed to the original bill of complaint takes the position that it affirmatively appears from the bill of complaint that there is no privity of contract between the complainant and the respondent Leila Glover Webb, and that it affirmatively appears that the work and labor alleged to have been done by the complainant was not done at the request of the respondent Leila Glover Webb.

The court sustained the demurrer to the original bill, which was then amended by Fox so that the third paragraph reads as follows:

'That, on, to-wit: the 20th day of September, 1955, your complainant entered into a written contract which the respondent, Julius Clarence Webb, a copy of which contract, marked Exhibit 'A' is attached hereto, and, by reference, made a part hereof as though fully set out herein; that the respondent, Leila Glover Webb, subsequently, ratified, confirmed and adopted the terms and provisions of said written contract; * * *.' (We have italicized to indicate the changes made.)

In this state where appeals are allowable to a decree sustaining or overruling a demurrer to a bill in equity without awarding a final decree, the Alabama Code provides that 'nothing in this section shall prevent an assignment of errors on such decrees on appeals taken on the final determination of the cause, if no appeal is taken under this section.' § 755, Title 7, Code of 1940. It is enough for us to say that the action of the trial court in sustaining the demurrer to the original bill, if error, was error without injury because it does not appear that the error complained of has injuriously affected the substantial rights of the appellant. Warren v. Crow, 202 Ala. 680, 81 So. 636; Supreme Court Rule 45, Code of 1940, Title 7, Appendix.

In this case Fox has received an award of the entire amount he asked for but due to the fact that judgment against him is in a greater amount, he is in the position of being required to pay, instead of receiving payment. It should make no difference to him whether he pays to Webb alone or to both Mr. and Mrs. Webb. Either way, he pays the same amount.

II. As to assignment of error number two, it is insisted by the appellant that the trial court erred in rendering its final decree in this cause for four reasons: (1) The bill of complaint should not have been dismissed as to the appellee Leila Glover Webb. (2) The court ignored the terms of the express contract between the appellant Fox and the appellee Webb. (3) The Court should not have awarded to appellees damages under their cross bill and (4) the Court erred in basing its decree on incompetent testimony.

Subheading (1)

The amended bill of complaint under which this cause was tried shows that appellee Leila Glover Webb was not a party to the contract for the erection of improvements on her property on which the appellant now claims a lien. It is contended by the appellant, however, that the evidence in this case establishes acts of ratification by Leila Glover Webb of such contract based upon her actions subsequent to the date of the contract and during the construction of the improvements thereunder.

We have considered the evidence very carefully as to whether or not Leila Glover Webb so ratified and confirmed the terms and provisions of the written contract as to make herself liable and to give the complainant the right to a lien on her property. It is our judgment that the evidence is not sufficient to give the complainant this right and is not sufficient to enable the complainant to establish a lien on her property, but we prefer to base our opinion on the proposition that if there was error in this action of the court, it was error without injury, because the substantial rights of Fox were not injuriously affected. Supreme Court Rule 45, Code of 1940, Title 7, Appendix. Only in case the judgment were reversed on other grounds would this position of the complainant require consideration. As we have heretofore pointed out, Fox received an award of the entire amount he asked for. This being true, it should make no difference to him whether or not Mrs. Webb is held liable and a lien established on her property.

Subheading (2)

It is contended by appellant that the contract made and constituted the Federal Housing Authority an umpire as to whether the construction of the building was in accordance with the terms of the contract and that no mere error or mistake in judgment should vitiate its determination, without a showing of fraud or bad faith on its part in respect to its approval of the building. In support of this proposition appellant cites Alabama Chemical Co. v. International Agricultural Corp., 215 Ala. 381, 110 So. 614; Regional Agricultural Credit Corp. of Washington, D. C. v. Hendley, 251 Ala. 261, 37 So.2d 97. This contention appears to be based on the assumption that the house should be constructed subject to the approval of the Federal Housing Administration. If this were true, of course, the parties would be bound by the terms of their contract, but in no place in the contract do we find such a provision.

We call attention to the pertinent parts of the contract which are paragraphs First, Second and Fourth. We find these provisions to be clear and unambiguous. The first paragraph provides that the house shall be constructed in accordance with certain FHA approved specifications and blue prints. The first paragraph is as follows:

'The contractor shall erect and build a dwelling house in a substantial and workmanlike manner * * * all in accordance with the description of materials set forth on FHA Form 2005, Case No. 1-505873 and the blue prints agreed to by and between the parties hereto and approved by FHA.'

This does not mean that FHA is to...

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    ...value" is particularly appropriate where the building is a dwelling house. Ritchey v. Sato, 39 Hawaii 500 (1952); Fox v. Webb, 268 Ala. 111, 105 So.2d 75, 67 ALR2d 1077 (1958). See also, Baldwin v. Alberti, 58 Wash.2d 243, 362 P.2d 258 (1961). This is because the interest of the owner is in......
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