John E. Ballenger Const. Co. v. Joe F. Walters Const. Co.

• Decision Date: 27 January 1938
• Docket Number: 4 Div. 992.
• Citation: 184 So. 273,236 Ala. 546
• Parties: JOHN E. BALLENGER CONST. CO. ET AL. v. JOE F. WALTERS CONST. CO.
• Court: Alabama Supreme Court

184 So. 273

236 Ala. 546

JOHN E. BALLENGER CONST. CO. ET AL. v. JOE F. WALTERS CONST. CO.

4 Div. 992.

Supreme Court of Alabama

January 27, 1938

Certiorari to Court of Appeals.

Action by the Joe F. Walters Construction Company against the John E. Ballenger Construction Company and another on a road contractor's bond to recover the amount due plaintiff for labor, materials, feedstuff, and supplies furnished contractor. A judgment for plaintiff was affirmed by the Court of Appeals, 184 So. 270, and defendants bring certiorari.

Writ awarded, judgment reversed, and cause remanded to the Court of Appeals.

Geo. T Garrett and Ball & Ball, all of Montgomery, for petitioners.

Walters & Walters, of Troy, for respondent.

FOSTER Justice.

The Court of Appeals very properly refused to consider matter not shown by the record when they interpreted the bill of exceptions. Pearce v. Clements, 73 Ala. 256.

The point on which that court based its opinion depended upon a construction of that instrument. When so, on certiorari to this court, we will examine the record for a complete understanding of the status under consideration. Cranford v. National Surety Corp., 231 Ala. 636, 166 So. 721.

The suit was for certain alleged items of labor, material feedstuff, and supplies sold to a road contractor, and counted on the surety bond, with the surety as a defendant.

The recovery was on counts 1 and 2, but not on count 3. Count 1 claimed an amount for the use or rental of a certain Lorain shovel. Count 2 was for a certain amount of cable. Count 3 claimed both items and had attached to it an alleged copy of the bond.

Among the grounds of demurrer, there was one that the use or rental of the shovel was not such material or supplies as was included in the bond and statute under which it was made. That was apparently a contention made on the appeal before the Court of Appeals.

The bill of exceptions which recites that it contains all the evidence introduced in the case also recites that plaintiff "introduced a certified copy of the bond entered into the 26th day of May, 1934, for the John E. Ballenger Construction Company marked plaintiff's Exhibit 'C' which was in words and figures as follows." It then sets out what purports to be such certified copy as to which there is also an agreement shown by the bill of exceptions that the copy so certified shall be deemed for all purposes as the original bond.

There is no averment in any of the counts that there was attached to the bond a copy of the construction contract, or proposal and specifications. But the copy of the bond attached to count 3 contains in its body recitals to that effect, as does also the copy set out in the bill of exceptions. But no such documents were attached as they thus appear at either place in the record.

Counsel differ as to whether they were in fact attached when offered in evidence. It is also said in brief that when the bill was signed there was at that point an instruction to the clerk to insert this document...