Howell v. Dodd

• Decision Date: 18 October 1934
• Docket Number: 8 Div. 596.
• Citation: 157 So. 211,229 Ala. 393
• Parties: HOWELL v. DODD.
• Court: Alabama Supreme Court

157 So. 211

229 Ala. 393

HOWELL v. DODD.

8 Div. 596.

Supreme Court of Alabama

October 18, 1934

Rehearing Denied Nov. 8, 1934.

Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.

Action in assumpsit by A. B. Dodd, doing business under the name of Jervis Foundry & Machine Company, against Pauline Howell, as executrix of the estate of A. P. Howell, deceased. From a judgment for plaintiff, defendant appeals.

Transferred from Court of Appeals.

Affirmed.

E. W Godbey, of Decatur, for appellant.

Eyster & Eyster, of Decatur, for appellee.

FOSTER Justice.

This is an action by appellee against appellant for work and labor done and material furnished in repairing a planer, the property of defendant's testate, and at his instance and request. The common counts only were relied on. The account embraced items extending from February 7, 1928, to November 1928. Defendant's testate died June 10, 1929. The suit was filed August 19, 1931.

The plaintiff's evidence tended to show that the work was done and a statement of account furnished deceased before he died; that he inspected it, made no objection to the work nor the account, but expressed a willingness to pay it, and explained how he proposed to provide the funds. But he died without doing so. In the meantime, the planer remained in the custody of plaintiff, and no payment nor tender was ever made of the amount of the account nor of any amount in whole or partial settlement.

The defenses insisted on, and which appellant here argues, are (1) that plaintiff undertook to complete the job of overhauling the planer completely for $300 approximately which was never fully done, and in no event should the amount exceed $300, and (2) that plaintiff removed from the planer two pulleys and sold them (of a value of, to wit, $15), and thereby rendered it unsuited to use as such, and was a conversion of the entire machine of a value more than the amount of the account; (3) that plaintiff placed the machine in the weather to corrode and deteriorate, and thereby converted it, when he should have kept it in the shop or under shelter for protection, and never completed the job, but retained it incomplete in his possession; (4) error in allowing in evidence the ledger sheet; (5) excluding certain evidence in respect to values offered by defendant; and (6) refusal to grant motion for a new trial.

We will, pursuant to our rules, treat and consider only those questions presented in the assignments of error which are argued in brief by appellant's counsel, in the order in which we have stated them.

1. There is no doubt of the principle of law that, if plaintiff made a contract to complete the work of overhauling the planer for a stipulated sum, he can only recover that sum, though the suit is on the common counts, Carbon Hill Coal Co. v. Cunningham, 153 Ala. 573, 44 So. 1016; Martin v. Massie, 127 Ala. 504, 29 So. 31; McCormick v. Badham, 204 Ala. 2 (17), 85 So. 401; Varner v. Hardy, 209 Ala. 575, 96 So. 860; Maxwell & Delehomme v. Moore, 163 Ala. 490, 50 So. 882; and he cannot recover that sum nor any other unless he has completed the job, or the defendant has accepted it as being so done, or has waived its full completion, and has made use of plaintiff's work and material.

On all those questions, the evidence was such as to justify a finding contrary to the contention of appellant. To be more specific in this respect, we observe that there was evidence to support a conclusion that no stipulated sum, even approximately, was agreed on. It was undisputed that plaintiff agreed to overhaul the machine, which means, as the evidence shows, that he was to do what was necessary to put it in good working condition and suitable to operate in a proper manner; and that he did not make and attach what is called a "back bed plate," on which the boards extending through the planer are to be held in position until the operation is complete; and that such plate is a customary attachment in using such a planer efficiently. But the jury could find that the bed plate attached was left off in carrying it to plaintiff, and could infer that to make another was not contemplated by the owner, and that he saw the machine after its alleged completion, and made no claim that the plate was not added, nor other fault with the work as complete, but expressed a willingness to pay for the work.

2 and 3. Appellant's contentions in this respect involve the duty and rights of a mechanic's lienholder in respect to the machine on which he has contributed his labor and material while he is in possession, and while the account is past due and unpaid. The statutory lien is conferred by section 8863, Code, and it supplements,...