Huntsville Elks' Club v. Garrity-Hahn Bldg. Co.

• Decision Date: 21 November 1911
• Citation: 176 Ala. 128,57 So. 750
• Parties: HUNTSVILLE ELKS' CLUB v. GARRITY-HAHN BLDG. CO. ET AL.
• Court: Alabama Supreme Court

57 So. 750

176 Ala. 128

HUNTSVILLE ELKS' CLUB v. GARRITY-HAHN BLDG. CO. ET AL.

Supreme Court of Alabama

November 21, 1911

Rehearing Denied Feb. 15, 1912.

Appeal from Chancery Court, Madison County; W. H. Simpson Chancellor.

Suit by the Garrity-Hahn Building Company and another against the Huntsville Elks' Club. From a decree for complainants defendant appeals. Reversed, rendered, and remanded.

Walker & Spragins, for appellant.

Strang & Fletcher, Cooke & Swaney, and Brickell & Smith, for appellees.

DOWDELL C.J.

This cause was submitted in the chancery court upon the pleadings and proof as noted by the register, and a final decree rendered by the chancellor in favor of the complainants in the bill, from which the present appeal is prosecuted by the respondent, the Huntsville Elks' Club. The purpose of the bill is to enforce a mechanic's lien on the property described for an alleged balance claimed to be due for the erection of the described building. A copy of the contract which was in writing, is made an exhibit to the bill. By the terms of the written contract (article 6) the work was to be completed within 10 months from the receipt of the figured drawings from the architect. Time became and was made an essence of the contract by the provisions thereof. In paragraph 6 of the bill it is alleged that after the work was begun a new agreement was made in July, 1906, under which the building was to be completed within a reasonable time from that date. The defendant by its answer expressly denied the making of any new agreement as alleged in the bill or any change or modification of the contract as to the time of the completion of the building, and further set up in its answer to the bill that the contractors wholly failed to complete the building within the time stipulated in the contract, and that by reason of the failure to complete the building within the time limit the contract was breached, to the great damage of the defendant, in that the defendant was deprived of the use of the building for more than a year, which use was reasonably worth to the defendant a large sum, namely, more than $7,000, all of which damages the defendant claimed and seeks to recoup against the claim of the complainants set up in the bill.

The chancellor in his decree ignored the respondent's claim for damages sought to be recouped, and doubtless upon the theory that the new arrangement as alleged in the bill between the parties had been established by the proof. But a careful consideration of the evidence by us leads us to a different conclusion, and under the statute (section 5955, subd. 1) we are required to weigh the evidence and decide on the facts without attaching any weight to the decision of the chancellor.

The burden rested on the complainants to establish by proof the alleged change in the original contract. While parties may vary or change written contracts by subsequent parol agreements, yet, when a change is averred and there is a denial of it, the proof of change should be clear and satisfactory. The complainants' testimony here is not of that clear and satisfactory character; besides, the weight of the respondent's evidence is against the alleged change of the original contract as averred in the bill.

The bill contains no averment of an estoppel against the respondent's right to claim damages arising out of a breach by the complainants of the original contract as alleged in the respondent's answer to the bill. Nor are any facts stated in the bill on which an estoppel in favor of the complainants against the respondent's claim of damages might be predicated.

The sureties on the bond of the contractors, the Garrity-Hahn Building Company, which was given for the faithful performance of the contract, were in law...