Maryland Casualty Co. v. Dupree

• Decision Date: 18 June 1931
• Docket Number: 7 Div. 34.
• Citation: 223 Ala. 420,136 So. 811
• Parties: MARYLAND CASUALTY CO. v. DUPREE ET AL.
• Court: Alabama Supreme Court

136 So. 811

223 Ala. 420

MARYLAND CASUALTY CO. v. DUPREE ET AL.

7 Div. 34.

Supreme Court of Alabama

June 18, 1931

As Modified on Denial of Rehearing October 15, 1931.

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

Action on a contractor's bond by O. D. Dupree and R. O. Noojin partners doing business as the Dupree Hardware & Lumber Company, against the Maryland Casualty Company. From a judgment for plaintiffs, defendant appeals.

Reversed and remanded.

Hood &amp Murphree, of Gadsden, for appellant.

Goodhue & Lusk, of Gadsden, for appellees.

THOMAS J.

The complaint, in two counts, was for the breach of a bond and a common count in assumpsit.

The motion for the transfer to the equity side of the court to enable the defendant to assert an equitable defense was denied on the ground that such equitable defense in the nature of subrogation could be interposed and tried in the pending action at law. The pleading was in short by consent as follows: "It is agreed between the parties in the above-captioned case, that the defendant may plead in short by consent all defenses appropriate to the causes of action stated in the several counts of the complaint, and that the plaintiff may reply to such defenses in short by consent all matters appropriate, and that either party may offer in proof the testimony of any witness or any evidence competent and relevant to the issues in the cause."

There was tender on the part of the defendant of the amount it admitted to be due.

The court gave the general affirmative charge for the plaintiffs on request in writing upon the agreed statement of facts in the following words:

"The Court charges the jury that if you believe the evidence in this case the plaintiffs are entitled to recover the sum of $3749.08 with interest thereon from April 1, 1930."

"The Court charges the jury that if they believe all the evidence in the case they should not find a verdict for the plaintiffs, on count one of the complaint."

And denied defendant's written requests, as follows:

"The Court charges the jury, that if they believe all the evidence in the case their verdict should be for the plaintiffs only in the principal amount of $1134.97 plus the amount of $59.27, the interest from April 1, 1930, to November 26, 1930, the date of this trial, which two amounts were paid into Court on this November 26, 1930."

"The Court charges the jury that if they believe all the evidence in the case, they should not find a verdict for the plaintiffs on count two of the complaint."

The facts in short are that Mr. Clark entered into a contract with the board of education to construct a school building in the city of Gadsden for the gross sum of $20,175, of which 85 per cent. was to be paid in the installments indicated, and the final payment within ten days after fulfillment and on written certificate of the architect. The board retained the 15 per cent. of the cost of labor and materials for its protection and those who were supplying the same to the contractor. The latter executed bond as provided by statute (General Acts, Reg. Sess., 1927, pp. 37, 38), and appellant was the surety thereon.

The plaintiffs' witness Dupree testified that his firm loaned Clark money to the amount of $650 on November 30, 1929, and it was agreed that he would repay it "out of his next estimate"; so of the loan of $454 to Clark of date of December 7, 1929, though the bill states the date as December 7, 1924. We take the date from the agreed statement of facts as December 7, 1929, the time of the building construction. He stated the "conversation" occurring on delivery of the check on payment by the board, as follows:

"At the time Clark received the $4012 check he had from the architect, Mr. Simpson, an order to the Board for this amount; he turned this check over to me with the request that I get the check. I carried it up to Mr. Donehoo's office in the High School Building on Saturday morning, the twenty first day of December as I recall it, and he gave me this check."

"It was understood by Mr. Clark when he turned this check over to me, that I was to give him the check for $500 for his payroll and additional check for $400 that he wished to use in making a trip to spend Christmas with his family."

"Clark specified that he was to get the $900 before turning the check over to us."

"Yes, it was agreed between he and I, and I had agreed with him he could have this much money out of this check, the balance of the check was to be applied as we had formerly agreed, the cash items that we had advanced him, these checks, and the balance to be applied to the East Gadsden School account for material."

"He stated he wanted to go home and spend the holidays with his family and that he would want $400, that he did not want the $400 at that time, would not want it until Monday or Tuesday when he was ready to leave, and I told him that was all right, just come over at that time and I would give it to him."

Witness was thereupon asked the following question: "At that time you agreed to give him the $400? To which he answered: "Yes sir."

The respective contentions of the parties are declared in the agreed statement of facts, as follows:

"The plaintiffs contend that the defendant has not the right to require them to credit said amount of $3,749.08 with said $2,614.11, and therefore contend that they are entitled to recover said entire amount of $3,749.08.

"The defendant contends that it is entitled to credit for $2,614.11 against said amount of $3749.08 for materials furnished by the plaintiffs on said East Gadsden School job.

"*** It is also understood that the defendant does not agree to plaintiffs' contention that at the time they received the $4,012 check it was understood and agreed between the plaintiffs and said S. P. Clark that said two items of $500 and $400 should be paid to the said Clark out of the proceeds of said check for $4,012.

"*** That the plaintiffs at the time of furnishing material to S. P. Clark and at the time of the receipt of the $4012 check, and at the time of the assignment given them by S. P. Clark, November 30, 1929, knew and were aware that the defendant, the Maryland Casualty Company, was surety on the bond of S. P. Clark for the completion of the East Gadsden School.

"*** That on the twenty first day of December, 1929, a check in the amount of $4012 was issued by said Board of Education to S. P. Clark, and delivered by Clark to plaintiff, and said check is hereto attached marked Exhibit 'C.' Of this amount the plaintiffs credited to Clark on the East Gadsden School job $1397.89, leaving a balance of $3749.08, the amount which plaintiffs claim to be due at this time by said Clark on the East Gadsden School job, plus interest from April 1, 1930."

The items of credit by cash and goods returned amounted to .. $4,118.15,

to which (if added the check of) .............................. 4,012.00

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would aggregate ............................................... $8,130.15.

and if this sum be deducted from the contract ................. 9,265.32.

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would leave a balance of ...................................... $1,134.97.

Such is defendant's view as to the amount that was tendered, and interest. The date from which interest was to be calculated is fixed by the agreed statement of facts.

The record shows that appellees advanced several sums of money to Clark in amounts aggregating $2,614.11, and this sum was deducted from the $4,012, leaving the balance of $1,397.89. However, appellees were only credited on the contract price of $9,265.32 with the $4,118.15 (the amount of cash and goods, returned items), and the alleged balance from the board's check of $4,012 (after payment of the $2,614.11), which alleged sum or balance was $1,397.89, thus leaving the alleged balance due of $3,749.08, for which recovery is sought.

Thus was presented the question of a right application of payments-of a credit of the $2,614.11 out of the board's check of $4,012-appellant contending that this sum ($2,614.11) should have been applied on and in the extinguishment of the "labor and materialmen's lien" on the East Gadsden School building furnished by appellees (and not to other and individual matters between the parties), and to such extend relieving appellant as Clark's surety for such claims; that is, the sum should not have been applied in the reimbursement of appellees for moneys advanced by them to Clark on the latter's application.

Whatever may be the right of appellant, under the statutes (sections 6488, 6490, Code) or decisions, to transfer a pending cause to the equity docket that it may set up its rights in the nature of subrogation (American Bonding Co. of Baltimore v. Fourth Nat. Bank of Montgomery, 206 Ala. 639, 91 So 480; Greil Bros. Co. v. City of Montgomery, 182 Ala. 291, 62 So. 692, Ann. Cas. 1915D, 38), it is established that the action of the trial court in overruling the motion to transfer may not be considered, for it has been declared that the right to review an action granting such motion does not extend to the denial of such application or motion. Wiggins v. Stewart Bros., 215 Ala. 9, 109 So. 101; Fountain v. State, 211 Ala. 586, 589, 100 So. 892; Pearson v. City of Birmingham, 210 Ala. 296, 97 So. 916; Claborne v. Nichols, 204 Ala. 282, 85 So. 415. It is further established that, having affirmatively invoked the court to the denial of motion to transfer to the equity side of the docket, the successful party may not in the same action contend that such equitable defense cannot be considered in the trial of the action at law. Having taken the contrary position on the hearing of the motion which was successful-that the equitable defense was...