Mayben v. Travelers Indem. Co.

• Decision Date: 30 August 1962
• Docket Number: 7 Div. 572
• Citation: 273 Ala. 643,144 So.2d 52
• Parties: William E. MAYBEN, d/b/a Mayben & Son Company v. TRAVELERS INDEMNITY COMPANY et al.
• Court: Alabama Supreme Court

Page 52

144 So.2d 52

273 Ala. 643

William E. MAYBEN, d/b/a Mayben & Son Company v. TRAVELERS INDEMNITY COMPANY et al.

7 Div. 572.

Supreme Court of Alabama.

Aug. 30, 1962.

Inzer, Martin, Suttle & Inzer, Gadsden, for appellant.

David J. Vann and White, Bradley, Arant, All & Rose, Birmingham, for appellees.

MERRILL, Justice.

Appellee Kelly was a general contractor who was building a dormitory at Tuskegee Institute. Appellee, The Travelers Indemnity Company, was the surety on his bond. It became necessary to replace one of the subcontractors on the job, and Kelly made an oral contract with appellant, whereby appellant was to complete the work originally started by the original subcontractor. When the work was completed, appellant sued for $2,154.25, which he alleged was due and unpaid under the oral contract.

Appellee Kelly denied that any amount was owing appellant, and also filed pleas of set off and recoupment for $5,911.72, which he claimed he had overpaid appellant. Demurrers to two of these pleas were overruled. The jury found the issues in favor of the defendants. A motion for a new trial was overruled and appellant appealed.

The main dispute in the case was whether the compensation agreed upon in the oral contract was to be based on the cost of the job plus ten percent of the costs for payment of the contractor's overhead plus ten percent profit, commonly known as a 'cost plus ten and ten,' as contended by appellant; or whether it was based on the cost of labor and material on the job plus ten percent commission as contended by appellee Kelly.

Assignments of error 1, 2, 3 and 4 charge error in the overruling of demurrers to appellee's two pleas of set off and recoupment. The argued grounds are that the pleas were not in proper form, were vague, uncertain and ambiguous.

An appellant has not only the burden of showing error but also of showing that he was probably prejudiced by the error. Supreme Court Rule 45; Shelby County v. Baker, 269 Ala. 111, 110 So.2d 896; Sovereign Camp, W. O. W. v. Colvin, 218 Ala. 616, 119 So. 635. Appellant's objections to the pleas were not to their substance, but went to form and verbiage, matters which could be corrected by amendment, and the evidence of overpayment would have been admissible under the plea of the general issue. The overruling of demurrers to pleas 4 and 7, if error, which we do not decide, was without injury, as, under the averments of the complaint, the matters of defense could have been introduced under the plea of the general issue. Southern Indemnity Ass'n v. Hoffman, 16 Ala.App. 274, 77 So. 474.

Moreover, appellant could not have been prejudiced by the overruling of the demurrers to the pleas of recoupment because the jury found against appellees on the pleas, and the judgment...