Gardner v. Black

• Decision Date: 11 April 1893
• Citation: 98 Ala. 638,12 So. 813
• Parties: GARDNER ET AL. v. BLACK.
• Court: Alabama Supreme Court

12 So. 813

98 Ala. 638

GARDNER ET AL. v. BLACK.

Supreme Court of Alabama

April 11, 1893

Appeal from city court of Anniston; B. F. Cassady, Judge.

Action by Joel Black against J. T. Gardner and J. B. Goodwin for the recovery of a sum of money alleged to be due plaintiff under a contract to erect a house for defendants. From a judgment in plaintiff's favor, defendants appeal. Reversed.

J. J Willett, for appellants.

John F Methvin, for appellee.

McCLELLAN J.

This action is by Black against Gardner and Goodwin. The complaint contains two counts. In the first the sum of $971.65 is claimed as damages for the breach of a contract whereby the plaintiff had undertaken to build, and had built, he alleges a house for the defendants. The second count claims a like sum alleged to be due by account for material furnished and work and labor done by plaintiff in the erection of a certain house for the defendants. Three pleas were interposed by defendants. In the first of these it is averred "that said plaintiff, Joel Black, left the state of Alabama, before the complaint was filed in this case, and has not been within this state at any time since, so that tender might be made to him, and that defendants are indebted to said plaintiff in the sum of one hundred and thirty four and 44-100 ($134.44) dollars, and now bring the money into court, together with the court costs incurred to date, which they pray the court may be taken and considered as a tender to said plaintiff of said amount." The second and third pleas are by way of recoupment against the balance of the amount sued for, after deducting $134.44, the sum admitted to be due, and paid into court, under the first plea. The complaint was filed August 31, 1891, and the pleas were filed September 15, 1891. On October 12, 1891, plaintiff filed a replication to defendants' second and third pleas, setting up that plaintiff's failure to complete the house within the time stipulated in the contract, which failure is made the basis of the damages sought to be recouped by those pleas, was due in part to necessary cessation of the work on account of inclement weather, and, for the rest, to the delay of defendants in providing certain of the material, etc., for the building, according to the terms of the agreement, and that the additional time complained of had been granted plaintiff by defendants in the manner provided in the contract. On this latter date the plaintiff also moved for an order directing the clerk of the court to pay to him the sum tendered, and paid into court. The motion was granted, the money paid over accordingly, and defendants excepted. On December 16th following, defendants moved to dismiss the cause out of court on the ground that, plaintiff having withdrawn the money paid into court under the plea of tender, he thereby accepted that sum in full satisfaction of the claim laid in the complaint. This motion appears not to have been made until a jury had been impaneled for the trial, but immediately thereafter, and upon the admission in open court of the receipt of the money by plaintiff, and his amendment of the complaint by reducing the claim therein asserted to the extent of the money so received. It does not appear, however, when the money was paid by the clerk to the plaintiff, further than at some time between October 12 and December 16, 1891. The motion to dismiss was overruled, and the defendants excepted. The trial proceeded, and judgment was rendered in favor of plaintiff for the balance claimed.

We are of opinion that the motion to dismiss was seasonably made. It was certainly interposed upon the instant that the fact of the withdrawal of the money was made to appear formally in the cause and court, and for aught that appears to the contrary the fund may not have been withdrawn until that time. Moreover, conceding that plaintiff received the money immediately on the granting of his motion, on October 12th, it may be that defendants either did not know the fact, or, knowing it, had no opportunity to avail themselves of it, until the case came on again, on December 16th. And, beyond all this, we do not conceive that the delay shown, even had defendants earlier knowledge and opportunity, was so unreasonable in itself, or when considered with reference to the fact that a jury had been impaneled to try the case, as to defeat the ultimate right to have the cause dismissed, if the motion to that end was a meritorious one, aside from the question of delay.

Was there merit in the motion? The fact that the plea of tender did not go to the whole of plaintiff's demand can be of no consequence whatever against the motion. These pleas never go to the whole claim asserted in the complaint. If they did no necessity for interposing them could ever arise, as, of course, the plaintiff would always accept the sum tendered, and the amount of costs accruing to time of tender. They, on the contrary, admit a part, and only a part, of the demand, and are accompanied by the money necessary to discharge the part so admitted. The defendant says, in effect: "I owe...