Miles v. Moore
| Decision Date | 07 April 1955 |
| Docket Number | 5 Div. 588 |
| Citation | 262 Ala. 441,79 So.2d 432 |
| Parties | Rebecca S. MILES v. Millard J. MOORE. |
| Court | Alabama Supreme Court |
Henry C. Meader, Montgomery, and Jas. O. Davis, Jr., Auburn, for appellant.
L. J. Tyner, Opelika, for appellee.
Assignments of error are as follows:
'7. The Court erred in overruling the objection of Respondent to the question asked the witness Mrs. Vivian Ellis (Transcript, p. 24).
'8. The Court erred in not ruling on the objection of Respondent to the question asked the witness Mrs. Vivian Ellis (Transcript, p. 24).
'9. The Court erred in overruling the objection of Respondent to the question asked the witness Mangum (Transcript, p. 56).
'10. The Court erred in not ruling on the objection of Respondent to the question asked the witness Mangum (Transcript, p. 56).
'11. The Court erred in overruling the objection of Respondent to the question asked Mrs. Miles as a witness (Transcript, p. 99).
Millard J. Moore, an original contractor, filed his bill of complaint in the circuit court of Lee County, in equity, against Mrs. Rebecca S. Miles, seeking to establish a statutory lien against a lot owned by Mrs. Miles and the residence which Moore constructed thereon and also seeking a sale of the property in satisfaction of the lien. § 37 et seq., Title 33, Code 1940.
It appears from the bill and exhibits thereto that the lien was sought to secure 'an indebtedness of Thirty-nine Hundred Sixty and 36/100 Dollars ($3960.36) with interest, from, to-wit: the 10th day of December, 1952 for balance due the undersigned Millard J. Moore for work and materials furnished and used by him as general contractor in the construction of a residence on the above described lot in the City of Auburn, Lee County, Alabama.'
Mrs. Miles answered the bill denying that she was indebted to Moore in any amount. She made her answer a cross bill wherein she sought to recover from Moore the sum of $6,700. She averred that she was not given possession of the residence in accordance with the terms of her contract with Moore and claimed damages of $200 for the delay. She also claimed the sum of $1,500 which she averred it was necessary for her to expend in order to complete the house and correct defects therein. She further claimed the sum of $5,000 damages because of alleged depreciation in the value of the residence due to the alleged use of defective materials and because of the alleged unworkmanlike manner in which the residence was constructed.
The case was tried upon the issue presented by the original bill of complaint, the answer and cross bill of Mrs. Miles, and Moore's answer to the cross bill. The result of that trial was the rendition of a decree against Mrs. Miles in the amount of $3,860.36, with interest. This amount was made a lien upon the property in question and it was ordered sold for the satisfaction of the lien unless the lien and costs were paid by Mrs. Miles within thirty days from the date of the decree. From that decree Mrs. Miles has appealed to this court.
There is no merit in assignments of error 7, 8, 9, 10, 11 and 12 for the following reasons: Each of those assignments is too general to warrant consideration here. Hall v. Pearce, 209 Ala. 397, 96 So. 608; Snellings v. Jones, 33 Ala.App. 301, 33 So.2d 371, certiorari denied 250 Ala. 89, 33 So.2d 273. The court reporter will set out those assignments of error in the report of the case. As to assignments of error 7, 9 and 11, we are unable to find on the pages of the transcript referred to in those assignments where the trial court overruled any objection interposed by counsel for respondent. As to assignments of error 8, 10 and 12, we call attention to the provisions of Act No. 101, approved June 8, 1943, General Acts 1943, p. 105, § 372(1), Title 7, Code 1940, 1953 Cum.Pocket Part, Vol. 2, p. 71. Under that law the trial court was not required to rule on the objections interposed by respondent's counsel, but was confined to consideration of such testimony before him as was relevant, material, competent and legal. Sansom v. Sturkie, 245 Ala. 514, 18 So.2d 267. See Redwine v. Jackson, 254 Ala. 564, 49 So.2d 115; LeMay v. LeMay, 205 Ala. 694, 89 So. 49. The course pursued by the trial court in failing to rule on objections interposed to evidence is in accord with the practice which prevails throughout this state in the trial of equity cases, which practice is in accordance with the provisions of law to which we have just referred above.
Moore averred in his bill that according to the terms of the original contract and the agreements supplemental thereto it was agreed that he was to construct the residence for the sum of $11,960.36; that Mrs. Miles had paid him only the sum of $8,000, leaving a balance due of $3,960.36, which she refused to pay although he, Moore, had 'in all things performed his part of the contract according to the original written building contract with respondent and all written and oral amendments thereto.'
As shown above, the trial court decreed that Mrs. Miles was indebted to Moore in the sum of $3,860.36, an amount $100 less than claimed by Moore. The reason for this difference appears in the following language which we quote from the decree of the trial court: '* * * that the balance due by the Respondent and Cross Complainant, Mrs. Rebecca S. Miles, to the Complainant and Cross Respondent, Millard J. Moore, under the contract as amended, for work and materials furnished under such contract as amended is $3960.36; that the Contractor, the Complainant and Cross Respondent, Millard J. Moore, acted in good faith in endeavoring to perform the contract and has substantially performed it; there being only a few minor or slight defects or omissions, and the Court is of the opinion that the Respondent and Cross Complainant, Mrs. Rebecca S. Miles, is entitled to a credit in the sum of One Hundred and no/100 Dollars ($100.00) for such minor and slight defects or omissions.'
Appellant argues that the trial court was in error in awarding Moore any recovery for the following reasons:
'(1) Appellee is not entitled to recover as for a substantial performance for the reason that the evidence establishes beyond a shadow of doubt that his lack of complete performance was willful, intentional or, at the very best, due to gross carelessness, and upon such a showing recovery may not be had...
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