Otinger v. Water Works and Sanitary Sewer Bd.
| Decision Date | 15 July 1965 |
| Docket Number | 3 Div. 157 |
| Citation | 278 Ala. 213,177 So.2d 320 |
| Parties | S. J. OTINGER, Jr., v. WATER WORKS AND SANITARY SEWER BOARD. |
| Court | Alabama Supreme Court |
Jerry L. Coe, Montgomery, for appellant.
Jones, Murray & Stewart, Montgomery, for appellee.
In the proceedings below S. J. Otinger, doing business as S. J. Otinger Construction Company, filed a complaint claiming $3,872.45 due from the Water Works and Sanitary Sewer Board of the City of Montgomery, Alabama, hereinafter called the Board, for work and labor done.
The Board filed its answer denying any indebtedness to Otinger, and also by way of counterclaim sought recovery of $2,627.55, it had allegedly overpaid Otinger.
The case was heard by the court without a jury, and after hearing, the court adjudged that neither party should recover of the other, and taxed the costs equally between the parties.
Otinger's motion for a new trial being overruled, he perfected this appeal from that part of the judgment denying his claim. The Board has not appealed.
In its counterclaim the Board averred that the plaintiff, Otinger, had entered into a written contract with the Board for the construction of trunk sewers, force mains, and a lift station in the area of Catoma Creek, and a copy of said contract was attached to and made a part of the counterclaim. It was further averred that the 'plaintiff commenced the work to be performed under the contract on, to-wit: October 17, 1961, after being sent a written order of the defendant'; that the plaintiff did not complete the contract within 120 consecutive days from commencement of the work, but 250 consecutive days thereafter, thereby exceeding the contract time by 130 days; that the contract provided for $50.00 a day as reasonable liquidated damages if plaintiff exceeded 120 days in completing the contract; that 'the defendant has fully performed all of its obligations under the contract, and the plaintiff has fully performed the work required of him, but exceeded the time limit imposed by the contract by 130 days;' and under the contract the defendant was entitled to withhold $6,500 damages, which amount the defendant offered to offset against the demand of the plaintiff, and the Board claimed an excess of $2,627.55.
The counterclaim further avers that upon completion of the work, the Board withheld $3,872.45, representing additional engineering fees paid its consulting engineers, which additional fees resulted from delay in completing the contract.
In brief counsel for appellant, Otinger, argues that the court erred in overruling appellant's demurrer to the counterclaim in that under the contract the Board was to give notice of the time of beginning of the work, and the complaint fails to allege the date for the commencement of the work. The counterclaim does allege that the plaintiff 'commenced the work to be performed on, to-wit: October 17, 1961, after being sent a written order of the defendant.' We consider this a sufficient averment of the giving of the notice.
Further, the counterclaim avers that the 'defendant has fully performed all of its obligations under the contract * * *.' The discharge of the burden on the plaintiff to aver performance on his part, of a condition precedent to the accrual of a claim, is met by averring that he has met all of the provisions of the contract. Floyd v. Pugh, 201 Ala. 29, 77 So. 323.
The court therefore did not err in overruling appellant's demurrer to the counterclaim in this aspect.
Counsel for appellant further contends that the court erred in overruling apellant's demurrer to the counterclaim in that ground 12 of the demurrer is to the effect that it affirmatively appears that the basis of appellee's claim is a contractual provision for a penalty.
The provision of the contract relating to payments for delay in completion of the contract is as follows:
'It is mutually agreed between the parties hereto that time is the essence of this contract, and in the event the construction of the work is not completed within the time herein specified, it is agreed that from the compensation otherwise to be paid to the Contractor, the second party may retain the sum of $50.00 per day for each day thereafter, Sundays and holidays included, that the work remains uncompleted, which sum shall represent the actual damages which the Owner will have sustained per day by failure of the Contractor to complete the work within the time stipulated, and this sum is not a penalty, being the stipulated damage the second party will have sustained in the event of such default by the first party.'
Counsel's argument is that the fact that since Sundays and holidays are included in the time limit, this demonstrates that the provision is for a penalty and not for liquidated damages.
It has been consistently held by this court, and our Court of Appeals, that when a contract is entered into, and the nature and amount of damages resulting from a breach thereof are conjectural and uncertain, the parties have a right to fix the same by contract, and having employed...
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...This rule has been applied to provisions against delay in performance on construction contracts. Otinger v. Water Works & Sanitary Sewer Board, 278 Ala. 213, 177 So.2d 320 (1965). None of the parties disputes the conjectural nature of delay damage in a case like this one or the lack of disp......
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...50 So. 136 (1909); Capital Fertilizer Co. v. Ashcraft-Wilkinson Co., 202 Ala. 92, 79 So. 484 (1918); Otinger v. Water Works and Sanitary Sewer Board, 278 Ala. 213, 177 So.2d 320 (1965). See Case Note, 'Impossibility of Performance in Action for Breach of Contract', 15 Ala.L.Rev. 582 (1963).......
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...agreed to be paid by the party in default, will be regarded as liquidated damages. 2 Ala. at 445. In Otinger v. Water Works and Sanitary Sewer Board, 278 Ala. 213, 177 So.2d 320 (1965), it was stated . . . when a contract is entered into, and the nature and amount of damages resulting from ......
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Contract Time and Completion
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