George v. Roberts

• Decision Date: 10 November 1921
• Docket Number: 2 Div. 698.
• Citation: 92 So. 1,207 Ala. 191
• Parties: GEORGE v. ROBERTS.
• Court: Alabama Supreme Court

92 So. 1

207 Ala. 191

GEORGE v. ROBERTS.

2 Div. 698.

Supreme Court of Alabama

November 10, 1921

Rehearing Denied Feb. 2, 1922.

Appeal from Circuit Court, Marengo County; A. B. Foster, Judge.

Action by M. H. Roberts against L. W. George on the common counts and special contract. Judgment for the plaintiff, and the defendant appeals. Reversed and remanded.

See also, 186 Ala. 521, 65 So. 345.

Henry McDaniel, of Demopolis, for appellant.

Elmore & Herbert, of Demopolis, Pettus, Fuller & Lapsley, of Selma and Smiths, Young, Leigh & Johnston, of Mobile, for appellee.

THOMAS J.

The case was before this court on a former appeal. 186 Ala. 521 65 So. 345. The suit is now upon the common counts and for breach of a building contract in failing to pay the contractor the balance due after completion of the building.

The legal effect or substance of the contract (4 Encyc. Pl. & Pr 916; Moundville Lbr. Co. v. Warren, 203 Ala. 488, 83 So. 479; Doullut & Williams v. Hoffman, 204 Ala. 33, 86 So. 73) signed by the parties (not the general specifications and addenda thereto) is averred in count 8, to which many grounds of demurrer were assigned. The overruling of the same is insisted upon by due assignment of error and by argument of counsel, as to the second, fourteenth, and sixteenth grounds thereof. Other grounds not being insisted upon are not considered. Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158. The second ground of demurrer is that said count "sets out in full" the contract by which it is provided that "payments shall be made upon certificate from the architect certifying that such payments are due," yet fails to allege or show that the defendant has ever failed or refused to pay any sums or amount certified by said architect to be due by him to the plaintiff. The count declares for the breach of the contract "in substance as follows, to wit," setting out the written contract and omitting the plans, specifications, and addenda. The contract averred "in substance provided," in paragraph 1, that M. H. Roberts, party of the first part, agrees to build the one-story residence for L. W. George, party of the second part, at the place indicated, under "the direction and to the satisfaction of George B. Rogers, architect (acting as agent of said owner), *** as provided for in the general specifications and addenda (copies of which have been delivered to the contractor), according to the true intent and meaning of said specifications and addenda and of these presents, including all labor and material incident thereto, and shall provide all scaffolding, implements and cartage for the due performance of said work." The expression "according to the true intent and meaning of said specifications and addenda and of these presents" makes the specifications and addenda a part of the written contract, for evidential purposes; yet the contract is not purported to be set out in hæc verba. In paragraphs 3 and 12 of the contract so averred, relating to alterations and payments, is contained the following stipulations:

(3) "Should any alterations be required in the work shown or described by the specifications, a fair and reasonable valuation of the work added or omitted shall be made by the architect, and the sum herein agreed to be paid for the work according to the original specifications shall be increased or diminished as the case may be. In case such valuation is not agreed to, the contractor shall proceed with the alteration, upon the written order of the architect, and the valuation of the work added or omitted shall be referred to three (3) arbitrators. ***"

(12) "And it is hereby mutually agreed between the parties hereto that the sum to be paid by the owner to the contractor for said work and material shall be four thousand three hundred forty-three dollars, and forty cents ($4,343.40), subject to deduction on account of alterations as hereinbefore provided, and that such sum shall be paid in current funds by the owner to the contractor in installments as follows:

"Payments shall be made upon certificate from the architect certifying that such payments are due.

"Contractor will submit to the architect estimates showing materials, etc., used and labor furnished on the building previous to the demands for payment, and the architect will issue certificates for eighty (80%) per cent. of the amount of statements as approved by him. It being understood that before the final settlement is made, the architect shall certify in writing that all the work, upon the performance of which payment is to become due, has been done to his satisfaction. ***"

And further that-

(13) It is "*** agreed between the parties thereto that no certificate given or payment made under this contract, except the final certificate or final payment, shall be conclusive evidence of the performance of this contract, either wholly or in part, against any claim of the owner, and no payment shall be construed to be an acceptance of any defective work."

(14) "And the said owner hereby promises and agrees with the said contractor to employ, and he does hereby employ, said contractor to provide the materials and to do the said work according to the terms and conditions herein contained and referred to, for the price aforesaid, and upon the conditions above set forth."

The complaint concludes with the averment that, although plaintiff has complied with all provisions of the contract on his part, the defendant has failed to comply with the provision "to pay to the said plaintiff in current funds the sum of money he agreed to pay under said contract or agreement," as provided in the prescribed form. Code, § 5382, subd. 9. Count 8 was in the statutory form. B. R. L. & P. Co. v. Littleton, 201 Ala. 141, 77 So. 565; Ferlesie v. Cook, 201 Ala. 571, 78 So. 915. In Davis v. Badders & Britt, 95 Ala. 348, 360, 10 So. 422, the question here presented by the second ground of demurrer was decided; and we have no desire to qualify that decision. Brooklyn L. I. Co. v. Bledsoe, 52 Ala. 538.

The fourteenth ground of demurrer challenges the sufficiency of that count, in the fact that defendant promised and agreed to pay the plaintiff in current funds certain sums of money, and that it failed to aver that the terms and provisions of the contract or agreement "have been performed or complied with so as to render the defendant liable." Thus is re-presented the question raised by the second ground of demurrer which we have decided adversely to appellant.

The sixteenth ground of demurrer was to the effect that count 8 attempted to set out in full the contract or agreement sued on; that the count shows...