Goldstein v. Leake

• Decision Date: 04 March 1904
• Citation: 138 Ala. 573,36 So. 458
• Parties: GOLDSTEIN v. LEAKE.
• Court: Alabama Supreme Court

36 So. 458

138 Ala. 573

GOLDSTEIN v. LEAKE.

Supreme Court of Alabama

March 4, 1904

Appeal from City Court of Birmingham.

Action by J. D. Leake against F. Goldstein. From a judgment for plaintiff, defendant appeals. Modified and affirmed.

The complaint contained four counts. The first three were the common counts for $132.50. In the fourth count the plaintiff claimed $132.50 as the amount due by the defendant to him under a contract whereby the plaintiff agreed to build a house for the defendant upon a lot owned by the defendant and to furnish the brick and mortar therefor. In the fourth count the plaintiff also sought to establish a lien upon the lot owned by the defendant for the amount claimed to be due. The defendant pleaded the general issue, and by special plea set up the breach of the contract by the plaintiff, in that he had furnished only about 15,000 brick, when he agreed to furnish 35,000, and that the brick so furnished were inferior; that the work was not done in a first-class workmanlike manner and that by such breach of the contract the defendant was damaged to the extent of $150, which he offered to set off against the claim of the plaintiff. The evidence for the plaintiff tended to show that he had built a house, furnished the brick and mortar, and had done the work as specified and agreed upon in the contract; that there were the number of bricks in the house which he stipulated were to be used; and that the work was done in a first-class workmanlike manner. The evidence for the defendant was in direct conflict with this, and tended to show that the work was very inferior, and that there were only 14,000 or 16,000 brick in the building, while the plaintiff had contracted to use 25,000; that the brick used on the exterior of the building were soft, salmon brick, while the defendant had contracted to use good, hard brick; and that there were only about 9 1/2 feet between the ceiling and the floor of the rooms of the house, while the plaintiff had contracted to make the said space 10 feet. Upon the introduction of all the evidence the defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked "(5) If the jury believe from the evidence that plaintiff agreed to construct the house for defendant with good hard brick where exposed to the weather, and failed to construct the house so that there was ten feet between the ceiling and the floor in all the rooms, they will find for the defendant on the fourth count of the complaint. (6) If the jury believe the evidence, they will find for the defendant on the fourth count of the complaint. (7) If the jury believe from the evidence that the plaintiff failed to carry out the contract under which he claims, then he will be entitled to the reasonable value of the brick and other materials furnished and labor done thereon, less the amount of $125, and all damages that the defendant has sustained by reason of the failure of plaintiff to carry out his contract. (8)...