Papot v. Howard

• Decision Date: 16 January 1908
• Citation: 45 So. 581,154 Ala. 306
• Parties: PAPOT v. HOWARD.
• Court: Alabama Supreme Court

45 So. 581

154 Ala. 306

PAPOT v. HOWARD.

Supreme Court of Alabama

January 16, 1908

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by G. W. Papot against Mrs. Lute Howard. From a judgment for defendant, plaintiff appeals. Affirmed.

Action on the common counts and for breach of contract. The first four counts were on the common counts. The others, six in number, were for breach of a contract and to enforce a materialman's lien. There were a number of pleas and demurrers filed and passed on by the court, not necessary to be here set out. A trial by jury was waived, and a request made for a special finding of the facts. It seems that on the trial of the cause the court made a special finding of the facts, and some time after the judgment was rendered filed said statement with the clerk, to be incorporated in the minutes along with the minutes of the judgment; but the clerk inadvertently failed to so incorporate the finding. This appearing, the appellee was permitted to continue the submission of the appeal, and pending the submission of the appeal the appellee entered a motion in the lower court to amend the minutes of the judgment nunc pro tunc by inserting therein the court's special finding of the facts. This motion was granted, and the amended minutes of the judgment sent up to this court in response to a certiorari.

The special finding of facts is substantially as follows: That on June 5, 1905, plaintiff and defendant entered into a contract by which plaintiff agreed to erect a building for defendant in Birmingham, and to furnish all the material and men necessary to erect and complete the building at a contract price of $4,625, to be paid only on certificate of the architect, as follows: Eighty per cent. of the price of material on ground and in place, and labor performed, and 20 per cent. to be retained until completion and acceptance of work. That plaintiff begun work under the contract, and continued in the prosecution of the same until August 15 1905, at which time the reasonable value of the materials on the ground and in place and labor performed thereon was $1,500. That defendant had paid plaintiff on said work $1,325. Plaintiff then demanded of defendant additional payment, claiming that the sum paid him was not 80 per cent of the materials and work. That upon defendant's refusing plaintiff's demand, plaintiff abandoned the work and did nothing further in connection with it, and defendant took possession of the work and completed the job at a cost of something near $3,000 in excess of the price at which plaintiff had contracted to do the same. And it was further found by the court that plaintiff could not have completed the work at the price contracted for, and that the work which was done up to that time was not done in a skillful or workmanlike manner, and not according to contract; the statement particularizing wherein it was not. It was further found that the reasonable cost of performing plaintiff's contract was largely in excess of the price agreed on, and that there was no profit to the plaintiff in the contract at the price at which he had taken it. It is further found that defendant had paid plaintiff the reasonable value for the work and labor done by plaintiff and accepted by defendant. It is further found that plaintiff voluntarily abandoned the work and without just...