Matthews v. Farrell

• Decision Date: 17 May 1904
• Citation: 140 Ala. 298,37 So. 325
• Parties: MATTHEWS v. FARRELL.
• Court: Alabama Supreme Court

37 So. 325

140 Ala. 298

MATTHEWS v. FARRELL.

Supreme Court of Alabama

May 17, 1904

Appeal from City Court of Talladega; G. K. Miller, Judge.

Action by D. A. Farrell against T. J. Matthews. From a judgment for plaintiff, defendant appeals. Reversed.

The complaint, as originally filed, contained five counts. The first and fifth counts were, after demurrer thereto, amended. The first count, as amended, was in words and figures as follows: "Plaintiff claims of the defendant the sum of seven hundred forty-six and 75/100 ($746.75) dollars, as a balance due from the defendant to the plaintiff, for installing the plumbing work in the Rex Hotel at Sylacauga Alabama, under and by the terms of a contract executed by and between the plaintiff and the defendant on, to wit, the 26th day of March, 1901. Plaintiff avers that he has performed all the duties enjoined upon him by the terms of said contract above referred to; that he has installed the plumbing therein provided for in good and workmanlike manner, and that for installing such plumbing and performing such work the defendant is indebted to him for the amount herein claimed that he has made demand upon the defendant for the sum of money herein claimed of him, since the completion of the work under said contract, and by the terms thereof; that the defendant has refused to pay to him the same; hence this suit." In the second count the plaintiff sought to recover the same amount for merchandise, goods, and chattels sold by him to the defendant. In the third count the plaintiff sought to recover the same sum for work and labor done. In the fourth count the plaintiff sought to recover the same amount as due upon an account, which was verified by affidavit. The fifth count, as amended, counted upon a contract, in which the plaintiff agreed to do certain work in connection with the installing of a heating apparatus in the hotel building and other plumbing work, and said contract is set out in hæc verba in said count. To the first count of the complaint, as amended, the defendant demurred upon the ground that it does not appear from the allegations of fact contained in said count that the defendant owes the plaintiff the sum claimed for installing the said plumbing work, and that it does not appear by the terms of said contract that the defendant owes the plaintiff for the plumbing done by the plaintiff under said contract. To the fifth count, as amended, the defendant also demurred. These demurrers were overruled. Thereupon the defendant pleaded the general issue and several special pleas. By the fourth plea, as amended which was interposed as a defense to the first and fifth counts of the complaint, the defendant set up that when the plaintiff claimed to have completed the work of putting in the heating apparatus as provided for under said contract and the same was put into operation, it was found to be defective; and, further, that the plaintiff had not put up the said heating apparatus in a proper and workmanlike manner; that the pipes leaked, and that it did not heat the building, and that the building was damaged by reason of the way in which the heating apparatus was installed; and said plea sets up the various ways in which it was alleged that said heating apparatus was put up in a defective condition and it was then averred that the plaintiff had breached his contract, and by reason thereof the defendant had been damaged in the sum of $1,000, which he offered to recoup against the plaintiff's demands, and claimed judgment for the excess. The seventh plea, as amended, averred the failure of the plaintiff to install the heating apparatus as required by the contract, and averred that the plaintiff did not put in said apparatus in a proper and workmanlike manner, and also that the defendant had been injured by reason of the many defects as alleged in said plea and as set up in the fourth plea. The seventh plea further averred that, upon the defects being pointed out to the plaintiff, he promised to put the said apparatus and connections in good and proper condition, if the defendant would allow the same to remain in the building, and promised to comply with his contract fully; and thereupon, relying upon such promises, the defendant allowed said apparatus to remain in said building, and the defendant took charge of said building after said promise by the plaintiff to put the apparatus in good condition, and was induced to do so and relied upon said promises in accepting the same; but that the defendant did not accept said apparatus and work, except upon the condition that the plaintiff would comply with his promises and agreement to put the same in proper condition and first-class order in accordance with his contract, and that the defendant accepted said work because of his reliance upon plaintiff's said promise. The plea then avers that the plaintiff did not comply with his promises, and failed to put the heating apparatus in proper condition, and that the defendant had been greatly damaged to the extent of $2,000, which damage the defendant offered to recoup against the plaintiff's claim under said contract, and asked judgment for the excess. To the fourth plea, as amended, the plaintiff demurred upon the ground, stated in various ways, that said plea was no answer to the complaint, and that the damages alleged could not be recouped against the plaintiff's demand. This demurrer was sustained. To the seventh plea, as amended, the plaintiff filed several replications, among which were the following: "(3) That he performed the work and placed the heating apparatus and furnished the other material and fixtures and did the work described in said contract, and after completing the same and installing said plumbing and heating apparatus, that he notified the said defendant, and that the same was examined and tested by the defendant, and was received and accepted by him, and that he has used said heating apparatus since, to wit, the 15th day of January, 1902, and that he is now using the same, and that for this reason he is liable, notwithstanding the facts set forth in said pleas. (4) That upon the making of said contract, which is the contract counted upon in count 5 of said complaint, and referred to in said pleas, the plaintiff with reasonable diligence installed the said heating apparatus, and did the other work as therein agreed between the plaintiff and defendant under the supervision of, to wit, E. H. Dutton, who superintended and inspected the same at the instance and request of the defendant, and that the same was placed in said building and the work done in accordance with said E. H. Dutton's directions; and after the same was completed the same was tested and received by the said Matthews, and used by him and his tenants who occupy and use the said Rex Hotel where said heating apparatus and material was installed and other work done." To the third and fourth replications to the seventh plea the defendant demurred upon the ground that said replications presented no answer to the seventh plea. This demurrer was overruled. Issue was joined upon said replications.

The testimony for the plaintiff tended to show that he installed the heating plant and did all the work under said contract in a proper and workmanlike manner; that the work was done under the superintendence of the person whom it was agreed between the plaintiff and the defendant should superintend said work and that the amount claimed was a balance due for work done under the contract and for the additional work which was done under the direction of and by agreement with the defendant; and that the charge for such additional work was reasonable. The testimony for the defendant tended to show that the heating apparatus was not properly installed, and that on account of its improper installation it leaked, and greatly injured the hotel, and that the defendant had been greatly damaged. The contract under which the work was undertaken by the plaintiff was introduced in evidence. During the trial the plaintiff introduced as a witness one Mr. Ross Blackmon, who testified that he was a practicing attorney at Anniston, and that the claim sued on in this suit had been placed in his hands by the plaintiff for collection; that after he had received said claim for collection he had a personal interview with Mr. Matthews, the defendant. Thereupon the defendant's counsel asked to be allowed to ask the witness if there was anything said about a compromise or settlement between him and Mr. Matthews. In response to the question so asked, the witness testified that he went to Sylacauga to collect the claim, and...