Merchants' Bank v. Acme Lumber & Mfg. Co.

• Decision Date: 24 May 1909
• Citation: 160 Ala. 435,49 So. 782
• Parties: MERCHANTS' BANK v. ACME LUMBER & MFG. CO.
• Court: Alabama Supreme Court

49 So. 782

160 Ala. 435

MERCHANTS' BANK v. ACME LUMBER & MFG. CO.

Supreme Court of Alabama

May 24, 1909

Appeal from Circuit Court, Lauderdale County; C. P. Almon, Judge.

Action by the Acme Lumber & Manufacturing Company against the Merchants' Bank. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The pleas referred to therein are as follows: (7) "For further plea defendant says that this suit was instituted to recover the price of certain lumber and other material alleged to have been furnished by the plaintiff to W. R Ambrose and this defendant to be used in the erection of a building in Tuscumbia, Ala., which the said W. R. Ambrose had contracted to build according to certain plans and specifications and plans made by Breeding & Whilding architects; that plaintiff, before the erection of said building was begun, agreed with the said W. R. Ambrose, for the consideration of $2,200, to furnish all the lumber and other materials necessary for the proper erection and construction of said building according to the said plans and specifications as the same were needed, and in sufficient time to enable the said Ambrose to complete said building on or before the 15th day of November, 1905, the time specified in the contract between the said Ambrose and this defendant for the completion of said building, which contract provided for a forfeiture of $4 per day as damages until said building was completed. Defendant avers that the plaintiff knew of said contract and the forfeiture provided therein, and failed and refused to furnish a part of the lumber and material to be used in the erection of said building as it had agreed to do; that it delayed the delivery of a large part of the lumber and materials which it did deliver for the erection of said building for three or four months, during which time the said Ambrose was forced to suspend work on said building. And the defendant avers that by reason of the plaintiff's failure to furnish lumber and other material as it had agreed to do the work of completing the building was suspended and delayed for nearly four months, to Ambrose's damage in the sum of $750, and the said Ambrose was damaged in the loss of a forfeit of $4 per day during the time intervening between the 15th day of November, 1905, the time at which said building was by the terms of the contract with said Ambrose to have been completed, and the date of its completion, to wit, the term of four months. Defendant avers that said Ambrose was damaged, in that Ambrose had caused a large number of carpenters and workmen to be employed to do the work of erecting said building, and that by reason of the plaintiff's failure to comply with its said contract with Ambrose the said Ambrose was forced to suspend work on said building, and was put to the trouble and expense of employing other and different carpenters and workmen to do the work of erecting the building, to his damage in the sum of $350. And defendant avers that the said Ambrose was damaged, in that a large part of the material furnished by the plaintiff was not of the character and grade provided for by the terms of the contract and the plans and specifications, and some of the material had to be removed, and other and better material put in its place, to the damage of said Ambrose in the sum of $450, all of which defendant, by consent of W. R. Ambrose pleads in recoupment." (10) "For further plea defendant says [the same as plea 7, except that the agreement was alleged to have been made with Ambrose and this defendant, and in the last paragraph of the plea it is alleged that some of the material furnished is not cut in the dimensions specified, and was not dressed, and could not be used; otherwise it is similar in all respects to plea 7]."

The following charge was refused to the defendant: (1) "If you believe from the evidence that the plaintiff made a proposition to W. R. Ambrose to furnish him with the material mentioned in the estimate dated June 15, 1905, and Ambrose accepted it, and the plaintiff afterwards supplied him with the material on the basis of that estimate, then I charge you that the plaintiff cannot recover from defendant anything for the material included in that estimate."

Kirck Carmichael & Rather, for appellant.

C. E. Jordan, for appellee.

SIMPSON J.

This action was brought by the appellee against the appellant, the complaint containing the common counts on account, account stated, and for goods, wares, and merchandise sold to the defendant. Pleas 7 and 10 (which will be set out by the reporter) allege that the suit is instituted to recover for certain lumber furnished to defendant and one Ambrose, but they do not say how, whether as partners, or as principal and surety; but the other averments of the pleas indicate that Ambrose was engaged in constructing a building for defendant under a contract by which Ambrose was to furnish all material and complete the building by a certain date, for a definite sum, and was subject to certain forfeitures if he failed to complete the building within the time specified. The gravamen of the pleas is that the plaintiff, with full knowledge of the contract between Ambrose and defendant, failed to furnish the lumber as it agreed to do, but so delayed, and furnished such indifferent material, that Ambrose lost a considerable amount, which is set out. Demurrers were sustained to these pleas, and this action of the court is the subject of the first assignment of error insisted on.

Whatever was the exact relation between the defendant and Ambrose, it is clear that, if the defendant had made himself liable to the plaintiff at all, it was to...