Goodwin v. Hall
| Decision Date | 04 April 1963 |
| Docket Number | 1 Div. 932 |
| Citation | 154 So.2d 654,275 Ala. 297 |
| Court | Alabama Supreme Court |
| Parties | George W. GOODWIN et al. v. Roger B. HALL. |
Johnston & Johnston, Mobile, for appellants.
Wilkins, Stephenson & Byrd, Mobile, for appellee.
The following charges were refused to defendants:
5. The Court charges the jury that unless you are reasonably satisfied by the evidence in this case that the Plaintiff fully performed all of his stipulations under the Contract introduced into evidence by him, you cannot return a verdict for the Plaintiff.
6. The Court charges the jury that the burden of proof in this case is on the Plaintiff to reasonably satisfy you by the evidence that he fully performed all of his stipulations under the Contract, and unless you are so reasonably satisfied by the evidence you cannot return a verdict for the Plaintiff.
7. The Court charges the jury that this action is brought under what is known as the common counts and unless you are reasonably satisfied from the evidence that the Plaintiff has fully performed all of his stipulations under the Contract which is in evidence your verdict should be for the Defendants.
8. The Court charges the jury that if you are reasonably satisfied from the evidence in this case that there was an express contract between the Plaintiff and the Defendants for the construction of the motel, then the Plaintiff is not entitled to recover under the common counts for money due on account and for work and labor done or upon any of them unless the evidence also reasonably satisfied you that the Plaintiff complied with the terms of the Contract. The burden of proving that the Plaintiff complied with the terms of the Contract rests upon the Plaintiff and unless he has done so to the reasonable satisfaction of the jury, you cannot return & verdict for the Plaintiff.
This is an action which was brought by Roger B. Hall, appellee, against George W. Goodwin, N. H. Goodwin and S. F. McEachern, in the Circuit Court of Mobile County, Alabama, to recover money alleged to be due on open account from the defendants to the plaintiff for work and labor done.
The complaint consisted of the common counts which are in Code form. The defendants filed their plea of the general issue and a plea in recoupment. On the trial of the cause, the claim advanced by the plea of recoupment was not contradicted and the court instructed the jury that if they found for the plaintiff, the amount of $459.07, claimed in the plea of recoupment, should be allowed. There appears to be no point raised in the case with reference to the plea of recoupment or action of the court in regard thereto.
The case went to the jury who returned a verdict for the plaintiff in the sum of $4,623.39. Motion for a new trial was overruled, and this appeal followed.
As we understand the case, the three defendants owned a piece of property on Dauphin Island and they were desirous of building a motel thereon. The plaintiff was a contractor operating out of Bradenton, Florida, and was engaged in the construction of a motel on a lot adjacent to defendants' property.
According to the testimony of plaintiff, the defendants first contacted him relative to the building of a motel on Dauphin Island in the presence of an architect, Carlos B. Schoeppl, who had prepared and delivered to the plaintiff the plans to use in the construction of the motel. Plaintiff then prepared on estimate of the cost to construct such motel according to the plans that had been delivered to him, and informed the defendants of such estimate.
Subsequently, the plaintiff was informed by the defendants that the estimated costs exceeded their budget and requested that he modify the plans so as to reduce the cost of construction. The plaintiff then prepared a memorandum showing various items that could be dropped from the original estimate, for example, cutting down the size of the lobby, eliminating the coffee shop, the restaurant, the cocktail lounge, and the swimming pool. The plaintiff also suggested the use of tectum in the construction of the motel. A contract was then entered into whereby the plaintiff would construct the motel according to the revised plans and specifications, for which the defendants were to pay the plaintiff in installments, with a fixed fee of $5,000 to be paid to the plaintiff.
After the work started, union trouble developed, and the defendant, Goodwin, stated that he would take over the construction and operate it with the supervision of the plaintiff (Hall), with 'Mr. Hall giving him a leading hand in the construction.' According to the plaintiff, from that time forward, he acted in the capacity of a supervising contractor.
It is undisputed that the defendants built the motel, paying for the labor and materials.
The plaintiff, however, claimed that the written contract had been modified by a subsequent oral agreement whereby he was to supervise the construction of the motel. Upon completion of the motel by defendants, when the plaintiff presented his bill to the defendants for working in a supervisory capacity, the defendants refused payment, and denied any modification of the contract and any liability to the plaintiff for work done in a supervisory capacity. This suit is brought on the common counts for work done by the plaintiff in a supervisory capacity.
It is established in Alabama that after parties enter into a written contract, they may, by mutual consent, modify the contract by subsequent oral agreement, when the original contract was not required by law to be in writing. Badders & Britt v. Davis, 88...
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