Mountain Terrace Land Co. v. Brewer & Jones

• Decision Date: 20 January 1910
• Citation: 51 So. 559,165 Ala. 242
• Parties: MOUNTAIN TERRACE LAND CO. v. BREWER & JONES.
• Court: Alabama Supreme Court

51 So. 559

165 Ala. 242

MOUNTAIN TERRACE LAND CO. v. BREWER & JONES.

Supreme Court of Alabama

January 20, 1910

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by Brewer & Jones against the Mountain Terrace Land Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Tillman Bradley & Morrow and L. C. Leadbeater, for appellant.

Frank S. White & Sons, for appellees.

McCLELLAN J.

Action against the owner by contractors engaged to grade streets and lay cement sidewalks and gutters and also sanitary sewers in pursuit of a plan to improve a plat of land designed to be or that was, divided into lots and sold for residential purposes. The complaint, after amendment, consisted of counts 2, 3, 4, and 5 as amended. The first three numbered are the common counts, on an account, on an account stated, and for work and labor done. The last, 5, as amended, complains of a breach of a written contract as that existed after a written alteration of it by mutual agreement. The contract, after alteration, is set out in hæc verba, and two breaches of it are alleged. The second breach is predicated upon the averred failure or refusal to pay for "extra work moving waste as per engineer's stakes. * * *" It is urged in brief that the breach alleged, as quoted, was not within the covenants of the contract declared on, and is hence unassignable as ground of action. As well as lay minds may interpret this contract more or less technical as it is, we are unable to find in it any provision dealing with the matter averred as the second breach thereof. However, the demurrer fails to designate which of the two breaches was without the covenants. The court did not err in overruling it in this particular. Count 5, as last amended, is not objectionable.

The general issue and payment were pleaded to all of the counts. To counts 2 and 4 these defenses were specially interposed numbered 5 to 11, inclusive: Abandonment of the undertaking before completion; nonacceptance of the work as complete performance of the contract; no pecuniary benefit, as the result of the work done, in excess of what was paid plaintiffs by defendant; and recoupment of the damages suffered in alleged enumerated breaches of the contract by the plaintiffs. Demurrers to these pleas were overruled, and there are, of course, no assignments in respect to these rulings. To these pleas, except that asserting voluntary abandonment before performance of the contract, replications 2, 3, 4, and 7 were interposed. In replication 2 it is averred that defendant waived full performance by accepting the work done by plaintiffs as it was done. Replication 3 is, in substance, the same as replication 2. Replication 4 is, in substance, the same as 2, except that it is alleged, additionally,...