Maxwell & Delehomme v. Moore

CourtSupreme Court of Alabama
Writing for the CourtMcCLELLAN, J. PER CURIAM.
PartiesMAXWELL & DELEHOMME v. MOORE.
Decision Date17 June 1909

50 So. 882

163 Ala. 490

MAXWELL & DELEHOMME
v.

MOORE.

Supreme Court of Alabama

June 17, 1909


On Rehearing, December 16, 1909.

On Rehearing.

Appeal from Law and Equity Court, Mobile County; Saffold Berney, Judge.

Action by Maxwell & Delehomme against Terry L. Moore. Judgment for defendant, and plaintiffs appeal. Affirmed.

Fitts & Leigh, for appellants.

R. H. & R. M. Smith, for appellee.

McCLELLAN, J.

The contract here involved was for the furnishing of the material and the work and labor to apply it in painting a house for defendant (appellee). The contract was not fully performed by plaintiffs--on the contrary, was abandoned by them when approximately 15 per cent. of it was unperformed. The common counts, as here, cannot, under such circumstances, be employed to recover upon a quantum valebat or quantum meruit for the outlay made by plaintiffs. Carbon Hill Co. v. Cunningham, 153 Ala. 573; 44 So. 1016; Martin v. Massie, 127 Ala. 504, 29 So. 31, and authorities therein cited.

The judgment is affirmed.

DOWDELL, C.J., and ANDERSON and SAYRE, JJ., concur.

On Rehearing.

PER CURIAM.

The insistence of the movant for rehearing, that full performance of the contract was prevented by Biggers, as the representative of Moore, was necessarily considered and decided on the original hearing, and the ruling that plaintiff had abandoned the contract was made in denial of the matter now urged as the reason for rehearing. The evidence, in this connection, shows only that Biggers informed plaintiffs of his (Biggers') purpose to have nothing more to do with the contract, and advised plaintiffs to get Moore's confirmation of further work done or material furnished by them; and it readily appears that this attitude of Biggers' was the result of disagreement with Moore. No act or word of Moore's is shown from which it could be concluded that Moore did or said aught to justify plaintiffs in failing or refusing to fully perform the contract.

The rehearing is denied.

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8 practice notes
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • March 24, 1913
    ...Gray, 12 R. I. 306; Ginther v. Schultz, 40 O. St. 104; Kennelly v. Walker, 107 N.Y.S. 95; Marshall v. Jones, 11 Me. 54; Maxwell v. Moore, 50 So. 882; Oakley v. Morton, 11 N.Y. 25; Tinley v. Van West, 104 N.Y.S. 3.) The law will not imply a contract to build a sidewalk in a manner forbidden ......
  • McCormick v. Badham, 6 Div. 845
    • United States
    • Supreme Court of Alabama
    • October 23, 1919
    ...397; Lowy v. Rosengrant, 196 Ala. 337, 71 So. 439; Joseph & Bros. Co. v. Hoffman & McNeill, 173 Ala. 568, 56 So. 216; Maxwell v. Moore, 163 Ala. 490, 50 So. 882; Carbon Hill Coal Co. v. Cunningham, 153 Ala. 573, 44 So. 1016; Worthington v. McGarry, 149 Ala. 251, 253, 42 So. 988; Anderson v.......
  • Howell v. Dodd, 8 Div. 596.
    • United States
    • Supreme Court of Alabama
    • October 18, 1934
    ...504, 29 So. 31; McCormick v. Badham, 204 Ala. 2 (17), 85 So. 401; Varner v. Hardy, 209 Ala. 575, 96 So. 860; Maxwell & Delehomme v. Moore, 163 Ala. 490, 50 So. 882; and he cannot recover that sum nor any other unless he has completed the job, or the defendant has accepted it as being so don......
  • Varner v. Hardy, 5 Div. 851.
    • United States
    • Alabama Supreme Court
    • June 7, 1923
    ...So. 31; Worthington v. McGarry, 149 Ala. 251, 42 So. 988; Carbon Hill Coal Co. v. Cunningham, 153 Ala. 573, 44 So. 1016; Maxwell v. Moore, 163 Ala. 490, 50 So. 882. An exception to the general rule is that, although the evidence discloses the special agreement, when the same has been execut......
  • Request a trial to view additional results
8 cases
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • March 24, 1913
    ...Gray, 12 R. I. 306; Ginther v. Schultz, 40 O. St. 104; Kennelly v. Walker, 107 N.Y.S. 95; Marshall v. Jones, 11 Me. 54; Maxwell v. Moore, 50 So. 882; Oakley v. Morton, 11 N.Y. 25; Tinley v. Van West, 104 N.Y.S. 3.) The law will not imply a contract to build a sidewalk in a manner forbidden ......
  • McCormick v. Badham, 6 Div. 845
    • United States
    • Supreme Court of Alabama
    • October 23, 1919
    ...397; Lowy v. Rosengrant, 196 Ala. 337, 71 So. 439; Joseph & Bros. Co. v. Hoffman & McNeill, 173 Ala. 568, 56 So. 216; Maxwell v. Moore, 163 Ala. 490, 50 So. 882; Carbon Hill Coal Co. v. Cunningham, 153 Ala. 573, 44 So. 1016; Worthington v. McGarry, 149 Ala. 251, 253, 42 So. 988; Anderson v.......
  • Howell v. Dodd, 8 Div. 596.
    • United States
    • Supreme Court of Alabama
    • October 18, 1934
    ...504, 29 So. 31; McCormick v. Badham, 204 Ala. 2 (17), 85 So. 401; Varner v. Hardy, 209 Ala. 575, 96 So. 860; Maxwell & Delehomme v. Moore, 163 Ala. 490, 50 So. 882; and he cannot recover that sum nor any other unless he has completed the job, or the defendant has accepted it as being so don......
  • Varner v. Hardy, 5 Div. 851.
    • United States
    • Alabama Supreme Court
    • June 7, 1923
    ...So. 31; Worthington v. McGarry, 149 Ala. 251, 42 So. 988; Carbon Hill Coal Co. v. Cunningham, 153 Ala. 573, 44 So. 1016; Maxwell v. Moore, 163 Ala. 490, 50 So. 882. An exception to the general rule is that, although the evidence discloses the special agreement, when the same has been execut......
  • Request a trial to view additional results

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