Montgomery County v. Pruett

Decision Date21 November 1911
Citation57 So. 823,175 Ala. 391
CourtAlabama Supreme Court

Rehearing Denied Feb. 15, 1912.

Appeal from City Court of Montgomery; William H. Thomas, Judge.

Action by O. J. Pruett against the County of Montgomery. From a judgment for plaintiff, defendant appeals. Affirmed.

Edward S. Watts and J. M. Chilton, for appellant.

Hill Hill & Whiting, for appellee.


O. J Pruett sued the county of Montgomery in the city court; the original complaint containing seven counts. Count 1 is on account stated; counts 2 and 6 for work and labor done, and materials furnished; counts 3 and 5 and 7 on accounts due December 1, 1908; and count 4 claims damages for breach of a contract by which plaintiff was to do certain work and furnish certain materials in the construction of three public county roads. It sets forth the specifications, avers full performance by plaintiff, and alleges defendant's failure to pay plaintiff therefor.

To the entire complaint defendant filed three special pleas. Plea 1 sets up an alleged provision in the contract upon which plaintiff's claims are founded, to the effect that the contractor was specifically bound to furnish the engineer with satisfactory evidence that all persons who did work or furnished material for said road construction, or who sustained damage or injury therein, or from, had been duly paid or secured, and that within 10 days after completion of the work, and before a final estimate was made, notice should be given the engineer that any balance due for said causes had been paid or released, and avers that said provisions are conditions precedent to the defendant's liability, and plaintiff has failed to comply therewith.

Pleas 2 and 3 are in set-off.

Plea 4 filed to count 4 only, denies that defendant ever entered into any such contract as set out therein; but avers that there was a separate and independent contract for each of the three roads specified.

Plea 5 is the general issue to the entire complaint.

Plaintiff demurred on variously assigned grounds to pleas 1, 2, 3, and 4. The demurrer to plea 1 was sustained, and the demurrers to pleas 2, 3, and 4 were overruled.

Plaintiff then amended his complaint by adding counts 8, 9, and 10 which do not differ from count 4, except that each count is confined to a single one of the three roads set out inclusively in count 4.

The defendant then refiled its pleas 1, 2, 3, 4, and 5 to the complaint as amended; and plaintiff refiled his demurrers to pleas 1, 2, 3, and 4. The court sustained the demurrers to pleas 1 and 4; and overruled the demurrers to pleas 2 and 3. Thus to the 10 counts of the complaint there remained the two pleas of set-off and the general issue, and upon these there was trial and verdict for the plaintiff.

Plea 4 was clearly but an amplified form of the general issue; or, if its special averments are considered as an attempted answer to counts 8, 9, and 10, it may well be denominated frivolous, as charged in the demurrer. And, as the general issue was otherwise pleaded, the elimination of this plea could not in any case have prejudiced the defendant, although erroneously effected by general demurrer.

With respect to plea 1 and the defense it presents, it is insisted for the appellee that, even if the demurrer was erroneously sustained, there was no injury to appellant, because the facts pleaded therein were just as available, and would have been equally advantageous, under the plea of the general issue.

It is a mistake to suppose, as argued for the appellant, that a county may not be liable on an implied contract, although it is true that no contract can be implied against a county unless it is one which the county is by law empowered to make. And so, ratification of an unauthorized--if legally permissible--contract may be implied. 11 Cyc. 478, D. There are no decisions in this state holding a contrary view. Naftel v. County of Montgomery, 127 Ala. 563, 567, 29 So. 29, simply declares that a county is only liable for a debt which the law allows it to contract, and which it has actually contracted, but not necessarily by express contract. On the other hand, Scarborough v. Watson, 140 Ala. 351, 37 So. 281, by implication concedes the propriety of the common counts in an action against a county. And it is well settled that general assumpsit lies against municipal corporations. Allen v. Lafayette, 89 Ala. 649, 8 So. 30, 9 L. R. A. 497; B. E. L. & P. Co. v. Montgomery, 114 Ala. 445, 21 So. 960.

We conclude, therefore, that general assumpsit lies against a county within the range of its contractual powers, just as it does against an individual.

Under the common counts (1, 2, 3, 5, 6, and 7), the plaintiff was required by the plea of the general issue either to prove an express contract with all the terms of which he had fully complied (Stafford v. Sibley, 106 Ala. 189, 17 So. 324; Abercrombie v. Vandiver, 126 Ala. 513, 532, 28 So. 491); or else that he had furnished labor or materials which were of benefit to the defendant, and which were voluntarily accepted by it (Davis v. Badders, 95 Ala. 348, 10 So. 422; Florence Co. v. Hanby, 101 Ala. 15, 13 So. 343; Bell v. Teague, 85 Ala. 211, 3 So. 861; Andrews v. Tucker, 127 Ala. 602, 29 So. 34; Martin v. Massie, 127 Ala. 504, 29 So. 31; Aarnes v. Windham, 137 Ala. 513, 34 So. 816; Henderson-Boyd Lumber Co. v. Cook, 149 Ala. 227, 42 So. 838; 6 Cyc. 111). In either case, defendant's special plea 1, if true, would be wholly irrelevant and inappropriate as an answer to these counts; and hence the rule that a plea setting up plaintiff's breach of a special provision of a contract is not a sufficient answer to the common counts, though it may be to a count on the contract. Everrood v. Schwartzkopf, 123 Ind. 35, 23 N.E. 969. Nor could the plea have been amended so as to make it pertinent to these counts without introducing matter wholly foreign to the plea as framed.


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    ...238 Ala. 149, 189 So. 775. See Allen v. Intendant and Councilmen of La Fayette, 89 Ala. 641, 8 So. 30, 9 L.R.A. 497; Montgomery County v. Pruett, 175 Ala. 391, 57 So. 823; Brown v. Tuskegee Light & Power Co., 232 Ala. 361, 168 So. The general power to construct and maintain roads was within......
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