A.P. Carrico & Son v. J.E. Duval Printing Co.

• Decision Date: 21 March 1929
• Docket Number: 1 Div. 542.
• Citation: 219 Ala. 65,121 So. 59
• Parties: A. P. CARRICO & SON v. J. E. DUVAL PRINTING CO.
• Court: Alabama Supreme Court

121 So. 59

219 Ala. 65

A. P. CARRICO & SON v. J. E. DUVAL PRINTING CO.

1 Div. 542.

Supreme Court of Alabama

March 21, 1929

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Action on account by the J. E. Duval Printing Company against A. P Carrico & Son. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under Code 1923, § 7326. Reversed and remanded.

Smiths Young & Johnston, of Mobile, for appellant.

Gordon Edington & Leigh, of Mobile, for appellee.

BOULDIN J.

The complaint is in one count, claiming of defendants "the sum of $349.10, balance due from them by account on or about the 19th day of January, 1927," etc. The demand sued upon grows out of a contract in writing between plaintiff and defendant for job printing, The printers undertook to furnish programs for use of a Lyric Theater, with covers of special design in colors, from week to week. By the terms of the contract 2,500 programs were to be delivered each week; the price of each weekly delivery being $35, "payment for programs to be made on the 15th of each month succeeding publication." It clearly appears this clause, as understood and acted upon by the parties, contemplated that the price of the several deliveries made in January should become due and payable February 15th.

The suit was brought on January 22, 1927. The demand included four deliveries for that month. Judgment went for full amount. In this was error. There could be no recovery in this suit for installments maturing after suit brought. Default in payment when due was part of plaintiff's case. The general issue cast this burden on them. Outcault Advt. Co. v. Hooten & Co., 11 Ala. App. 455, 66 So. 901.

That a controversy arose two days before suit brought, resulting in an abandonment of further operations under the contract, did not render these installments due, no matter who was at fault in the controversy, in the absence of a stipulation maturing these installments. Bradford v. Marbury, 12 Ala. 520, 46 Am. Dec. 264, 24 R. C. L. p. 95, § 362.

Nor does suing out of garnishments in aid of a pending suit under Code, § 8052, authorize the inclusion of these installments. It is not a case of original attachment issued upon statutory grounds and upon demands due or to become due. For this error the judgment must be reversed. Many other questions were raised on the trial and argued on this appeal. We deal with them in so far as deemed helpful on another trial.

The action can be maintained on the common counts. Although arising under special contract, when it is fully executed on the part of the plaintiff as for the demand in suit, and nothing remains but to pay, suit may be brought on the common counts. The contract is evidence of amount due. Beadle v. Graham 66 Ala. 99; Stafford v. Sibley, 106 Ala. 189, 17 So. 324; Abercrombie v. Vandiver, 126 Ala. 513, 28 So. 491.

That the contract was executory in the sense of being a continuing one calling for future deliveries and payments does not change the rule. The test is, Has the contract been fully performed as to the items sued for, and have the installments become due and payable?

Nor is the recovery on the common counts limited to deliveries coming up to contract. If they are accepted, the value may be so recovered. The defendant can plead breach of the contract by way of recoupment, and, if proven, reduce the recovery to the reasonable value of the product delivered and accepted. Hartsell v. Turner, 196 Ala. 299, 71 So. 658; Dalton v. Bunn & Allison, 137 Ala. 175, 34 So. 841; Varner v. Hardy, 209 Ala. 575, 96 So. 860.

Nor does the fact, if it be a fact, that the plaintiff, two days before suit brought, breached the contract in such manner as to become liable in damages, defeat the action on common counts. This was properly set up by way of recoupment or cross-action.

That plaintiff had certain cuts and dies of defendant, which it was his duty to deliver on termination of the contract, does not affect the form of action for installments already accrued and due to be paid.

This contract is one for the manufacture and delivery of articles sold, and governed by the law of such transactions rather than the law of entire contracts for personal services. Gibbony v. R. W. Wayne & Co., 141 Ala. 300, 37 So. 436; Manchester Sawmills Co. v. Arundel Co., 197 Ala. 505, 73 So. 24; Dalton v. Bunn & Allison, 137 Ala. 175, 34 So. 841.

Dealing now, with the item of $155.60 claimed for the last run of covers: The price for making these covers for programs was to be paid on the completion of each run. It was contemplated that, when printed or run off as per order, they should remain in possession of the printer and be used as covers of programs...