De Jarnette v. Cox

• Decision Date: 20 December 1900
• Citation: 128 Ala. 518,29 So. 618
• Parties: DE JARNETTE v. COX.
• Court: Alabama Supreme Court

29 So. 618

128 Ala. 518

DE JARNETTE v. COX.

Supreme Court of Alabama

December 20, 1900

Appeal from circuit court, Montgomery county; J. C. Richardson Judge.

Action by W. P. De Jarnette against W. N. Cox. From a judgment in defendant's favor, plaintiff appeals. Reversed.

The plaintiff sued the defendant for $50 claimed to be due for hauling, and $7.89 claimed to be due for building a line fence between him and defendant. Defendant offered to offset $50 balance due him by plaintiff for building a house, and $3.75 for building a fence. The evidence for the plaintiff tended to show that his bills were correct, while the evidence for defendant tended to show that the account for $50.60 should be $39.30, and that defendant was not liable for the $7.89, because he had agreed to pay that amount only when the fence had been put on the line, and it had never been put on the line. The evidence for defendant tended to show that he had built a house for plaintiff at an agreed price of $2,050, and that plaintiff had paid all of the money except $50, and had moved into the house, though claiming that it was incomplete, and at the time plaintiff was let into the house plaintiff agreed that he would pay the said $50 by hauling sand for defendant to that amount, and that the bill for $50.60 claimed of him by plaintiff arose because he had charged him 60, when, according to previous dealings he should have charged only 40, cents for hauling said sand and that plaintiff had agreed to complete the house; that although the contract required that the chimneys should be built as high as the highest point of the house, and they were not so built, they had been built, under the direction of the plaintiff, to a height subsequently agreed on between plaintiff and defendant; and that the flues of the chimneys were smaller than contracted for, but defendant had gone to plaintiff's house, and afterwards had written plaintiff a letter offering to do whatever was lacking to complete the contract, and plaintiff had refused to permit him to do anything further, and that plaintiff was indebted to defendant $3.75 for building a fence. Plaintiff's testimony was to the effect that the house had not been completed, and that he had paid all the consideration for building the house except $50, and had moved into the house on the promise of defendant to complete it; that said house had never been completed; that he had never agreed to any change in the contract; that it would cost at least $50 to complete the contract; that, although he had previously only charged the defendant 40 cents for sand, this sand had cost plaintiff 10 cents per load, and he had had to haul it further. Upon the introduction of all the evidence, the plaintiff requested the court to give to the jury the following written charge, and separately excepted to the court's refusal to give said charge as asked: "The defendant in this case cannot set off against the plaintiff's demand any amount whatever under the first and original contract between plaintiff and defendant in reference to the building of De Jarnette's house, unless the defendant has fully complied with the terms of said contract, or offered to do so." There was a verdict returned for the defendant. After the return of the verdict the plaintiff made a motion for a new trial upon several grounds. The grounds insisted upon, and the facts as stated in the bill of exceptions relating thereto, are sufficiently set forth in the opinion. This motion was overruled. The...