Mobile St. Ry. Co. v. Turner

• Decision Date: 19 December 1890
• Citation: 91 Ala. 213,8 So. 684
• Parties: MOBILE ST. RY. CO. v. TURNER.
• Court: Alabama Supreme Court

8 So. 684

91 Ala. 213

MOBILE ST. RY. CO. v. TURNER.

Supreme Court of Alabama

December 19, 1890

Appeal from circuit court, Mobile county; W. E. CLARKE, Judge.

After the coming in of the answer of the garnishee in this case there was a motion to discharge the garnishee on its answer. This motion was denied, and, on motion of the plaintiff, a judgment was entered against the garnishee for the full amount of the judgment for damages and costs previously entered against the defendant, with the interest thereon, and the costs of these proceedings. It is from this judgment that the present appeal is prosecuted.

Gaylord B. and Frank B. Clark, for appellant.

W E. Richardson, for appellee.

COLEMAN J.

Several questions have been argued in this cause, but we do not deem it necessary to consider but one. Appellant was summoned as garnishee to answer its indebtedness to one Sassaman, against whom appellee had recovered a judgment. The city railroad company by agreement contracted with Sassaman for the erection of a certain building, and, during the execution of the contract, and before its completion, sold its property including the building in progress of completion, to appellant. For the purposes of this trial, we will treat the contract binding upon appellant as the original contractor. The contract contains the following stipulation: "In case of delay by the contractor in producing and delivering the requisite materials, or in the advancement of the buildings or works, or of a deficiency of workmen, or for misconduct, inattention, or inability, the owner shall be at liberty (after the superintendent has given to or left for the contractor, with his foreman or clerk, three days' notice, in writing) to provide, at the expense of the contractor, all such materials and employ such number of workmen at such wages as the superintendent shall think proper, and the cost and charges incurred shall be retained out of the contract amount, and paid by a reservation from the estimate from time to time, or amounts thereof which may be due, or recoverable as liquidated damages." The answer of the garnishee, which must be considered as conclusively true in the absence of any contest, avers that the said contractor was guilty of delay in the performance of his contract in the advancement of the building; and that garnishee, as owner, did pay for account of said Sassaman the material-men and workmen at such price and...