Ollinger & Bruce Dry Dock Co. v. James Gibbony & Co.

• Decision Date: 14 November 1918
• Docket Number: 1 Div. 27
• Parties: OLLINGER & BRUCE DRY DOCK CO. v. JAMES GIBBONY & CO.
• Court: Alabama Supreme Court

81 So. 18

202 Ala. 516

OLLINGER & BRUCE DRY DOCK CO. v. JAMES GIBBONY & CO.

1 Div. 27

Supreme Court of Alabama

November 14, 1918

Rehearing Denied Feb. 13, 1919

Appeal from Circuit Court, Mobile County; Norville R. Leigh, Jr. Judge.

Action by James Gibbony & Co. against the Ollinger & Bruce Dry Dock Company. From judgment for plaintiffs, defendant appeals. Affirmed.

Harry T. Smith & Caffey, of Mobile, for appellant.

Stevens McCorvey & McLeod, of Mobile, for appellees.

GARDNER J.

It is first insisted by counsel for appellant (defendant) that the contract for repairs, "to put the barge in good repair," is too uncertain and indefinite to form the foundation of this suit. It was established without conflict that the agreement on the part of the appellant was to "put the barge Cahaba *** in good repair," and the argument is that such a term is too indefinite to constitute a valid contract, in that what might be considered "good repair" by one person might be deemed wholly inadequate by another.

This same argument, however, would be applicable to the ascertainment of the reasonable value of any particular article, or a reasonable time for the doing of a given act and yet these are matters which have been held to be sufficiently definite to form the basis of a contract.

The word "repair" has been defined as follows:

"Restoration to a sound, good, or complete state after decay, injury, waste, dilapidation, or partial destruction." Webster's International Dict.; Dougherty v. Taylor, 5 Ga.App. 773, 63 S.E. 930; 7 Words and Phrases, 6096, 6102.

It would appear, therefore, under the above meaning of the word "repair," that the adjective "good" as used in the contract may be considered as surplusage, neither adding to nor taking from the actual meaning of said word. As to what should constitute placing the barge in good repair would not be a matter left to the caprice of any of the parties, but, in case of disagreement thereon, it would be held to consist of what is the general and ordinary course pursued by reasonable and prudent business men in dealing with similar situations.

We are of the opinion that the objection to the contract for indefiniteness is not well made.

It is next insisted that damages are not recoverable by the plaintiffs (appellees) for the delay in the performance of the contract, for the reason that the plaintiffs themselves rescinded the same.

This argument is rested upon the assumption that the letter of June 26th, set out in the above statement of the case, was tantamount to a rescission of the contract. This letter is to be construed in the light of the facts and circumstances surrounding the parties at the time. Plaintiffs had been furnished a statement showing an amount for repair work at that time, which was very nearly double the sum which they considered was a reasonable compensation for the repairs, and, further, that plaintiffs knew at that time that the defendant (appellant) had done no work whatever upon this job for practically seven months, and that no preparations were being made to resume work thereon. Plaintiffs were evidently not satisfied with the method by which their work was being handled, and we are of the opinion this letter is properly construed as merely a request that, when defendant undertakes to resume the repair on the barge, they be given notice so that they will have an opportunity to outline what should be done. The contract, as previously shown, was silent as to the exact repairs to be made upon the barge, and we have held that, in case of disagreement thereon, such repairs would be considered as consisting of what is the general and ordinary course pursued by reasonable and prudent business men in dealing with similar situations. Clearly it was within the rights of the parties to discuss among themselves as to what would be required to place the barge in good repair, and to make suggestions in reference thereto, and enter into discussions or negotiations as to what should be considered by the parties within the meaning of the words "good repair." We therefore conclude that the letter is not to be construed as a rescission of the contract, but, on the other hand, that it appears on its face to show an express recognition of a continuance of the same, and expectation on the part of the plaintiffs that the repair work be resumed.

We do not intend by what is here said in treating this question to indicate an opinion that the plaintiffs could not recover damages for the delay for the unreasonable length of time up to June 26th, even should the letter be construed as contended by defendant. But, in view of the construction which we have placed upon this letter, it is unnecessary to enter into a consideration of that question.

The contention on the part of appellant that the appellees voluntarily accepted the benefit of work done is predicated upon the theory that the letter of June 26th operated as a rescission of the contract and what we have here said in regard to our construction of this letter suffices also for this insistence.

It is insisted that recovery of damages for the delay in the performance of this contract cannot be had in this case for the reason that plaintiffs gave the defendant no notice that a reasonable time for the repair work to be completed had passed, and that the defendant was to be held in default unless said work was completed within a reasonable time thereafter. This argument is based upon the doctrine announced in McFadden v. Henderson, 128 Ala. 221, 29 So. 640, Ackley v. Hunter-Benn & Co., 166 Ala. 308, 51 So. 964, Elliott v. Howison, 146 Ala. 568, 40 So. 1018, and other cases of similar character, to the effect that reasonable notice be given of the intention to rescind on account of delay in performance, and reasonable time allowed to remedy the default before the contract should be considered as rescinded.

We are of the opinion that this principle cannot be made to apply in the instant case, where damages are sought for the default of the contracting party in failing to make the repairs within a reasonable time. After the lapse of a reasonable time for the completion of the work the defendant had breached its contract, and substantial damages are shown to have accrued to the plaintiffs.

The notice required in cases of rescission, as in the authorities above cited, relates to the future conduct of the party notified, and we do not see that it would have any place in a case as here presented, where damages are sought for the wrongful delay already accrued. It cannot be questioned that, if the contract had called for the completion of the work within a definite time, and such time had elapsed, the plaintiffs would be entitled to recover damages for the wrongful delay.

The contract in the instant case did not specify any particular time, and therefore the time for the performance is supplied by the law, which requires the work to be completed within a reasonable time; and we are unable to see any sound basis to rest a distinction between such a contract and that where the time is definitely fixed. Some suggestion is made in argument as to acquiescence or consent to such delay, but this record does not sustain such, but rather the contrary. For the wrongful delay the plaintiffs are clearly given a right of action, and to require the notice necessary for a rescission of a contract to be given in a case of this character would render it impossible to recover at least a substantial portion of damages which resulted from delay in the performance.

We have been cited to no authority by counsel for appellant supporting this contention, and have been unable to find any. We do not think that those cases which treat of questions of rescission are analogous to that here presented; and we therefore conclude that the right of action is not lost by the failure to give...