R. D. Burnett Cigar Co. v. Art Wall Paper Co.

• Decision Date: 18 November 1909
• Citation: 51 So. 263,164 Ala. 547
• Parties: R. D. BURNETT CIGAR CO. ET AL. v. ART WALL PAPER CO.
• Court: Alabama Supreme Court

51 So. 263

164 Ala. 547

R. D. BURNETT CIGAR CO. ET AL. v. ART WALL PAPER CO.

Supreme Court of Alabama

November 18, 1909

On Application for Rehearing.

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

Action by the Art Wall Paper Company against R. D. Burnett Cigar Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Count 5 is as follows: "Plaintiff further claims of the defendant the sum of $1,500 as damages, to wit: That heretofore, to wit, April 17, 1906, plaintiff made to Messrs Wheelock, Joy & Wheelock, Birmingham, Ala., who were then and there the agents of defendant, and as such acting therein for and on behalf of said defendant, a proposition in words and figures as follows: [Here follows proposition to paper certain named rooms with 20 cent paper, other named rooms with 15 cent paper, also bathrooms with said paper, and certain other named rooms with 10 cent paper, on the second third, and fourth floors of the Florence Hotel; the specifications being as to the side walls, the ceiling to be finished as described in the proposition, together with certain chair rail and picture moulding; the total work to be done for the sum of $1,325.] Which said proposition plaintiff avers the said Wheelock, Joy & Wheelock, who as such agents were then and there acting for and on behalf of the defendant, and as such agents thereunto duly authorized accepted. And the plaintiff avers that he thereupon entered upon and began the execution of the said proposition as thus accepted, and was executing the same in strict compliance with all its terms and conditions, when the said defendant wrongfully forbade and prohibited the plaintiff from further executing said accepted proposition or contract, by wrongfully stopping plaintiff's employés when working through whom plaintiff was executing said proposition and contract, from prosecuting the work provided for in said proposition or contract. And the plaintiff avers that he was at all times ready, able, and willing to perform and complete said work provided for in said proposition or contract, but that the defendant wrongfully prohibited the plaintiff from doing so, wrongfully excluded the plaintiff and his said employés and workmen from said Florence Hotel building, and in violation of the plaintiff's rights in the premises wrongfully procured other parties to finish the execution of said proposition, and the work therein provided for, all to plaintiff's damage," etc.

Count 6 was practically the same as count 5.

Count 7: "Plaintiff further claims of the defendant the sum of $1,500 damages for the breach by the said defendant of an agreement made and entered into by and between the plaintiff and defendant on, to wit, the 17th day of April, 1906, whereby the plaintiff, in the sum of $1,325, agreed to do for the defendant the following wall paper work on the second, third, and fourth floors of the Florence Hotel in the city of Birmingham: [Here follows proposition as set out in count 5.] And plaintiff avers that he thereafter entered upon and began the performance and execution of said agreement in strict compliance with all the terms and conditions thereof, when the defendant breached the claim in this: The said defendant prohibited and prevented the plaintiff from a full performance and completion of said agreement by prohibiting plaintiff and its said employés to further perform and execute the work provided for in said agreement, although the plaintiff avers that he was at all times ready, able, and willing to perform and complete said work in strict compliance with all the terms and conditions of said agreement."

The demurrers to counts 5 and 6 seek to raise the proposition that the complaint shows that the contract was made with Messrs. Wheelock, Joy & Wheelock, and not with this defendant, and that they failed to show any cause of action against the defendant. The pleas were: The general issue, payment in full before suit, the voluntary abandonment by the plaintiff of the contract, and certain pleas of recoupment.

Charges 6 and 7 refused to the defendant, were as follows:

"(6) The court charges the jury that if the evidence reasonably satisfies them that there was an express contract between plaintiff and the defendant for doing the wall paper work in certain parts of the Florence Hotel, as shown by the contract, then the plaintiff is not entitled to recover under the common counts for an account due, and for merchandise, goods, and chattels sold, and for money paid by plaintiff for the defendant, and for work and labor done, or upon any of them, except what may be due, if anything, for the extra work done and extra materials furnished by the plaintiff, unless the evidence also reasonably satisfies the jury that the plaintiff complied with the terms of the contract, or that the defendant accepted the work as done. And the court further charges the jury that the mere occupancy or use of said hotel, or the part thereof where said work was done, does not warrant an inference of the acceptance of the work done as done in compliance with the contract, unless the possession or use thereof was coupled with some act or language on the part of defendant from which said acceptance may be reasonably inferred; and the court further charges the jury that the burden of proving that said work was done by the plaintiff in compliance with the terms of the said contract, or that said work was accepted by defendant, is upon the plaintiff, and, unless the plaintiff proved one or the other to the reasonable satisfaction of the jury, then the jury must find for the defendant, except as to any extra work done or material furnished by plaintiff, if any.

"(7) The court charges the jury that, except as to the extra work done and extra materials furnished by plaintiff, if any, the plaintiff is not entitled to recover upon any of the common counts for money due on accounts, or for merchandise, goods, and chattels sold, or for money paid by plaintiff for the defendant, or for work and labor done, or upon any one of them, unless the evidence reasonably satisfies the minds of the jury that either the plaintiff complied with the undertakings of the contract on his part or that the defendant requested the work as done. The burden of proving one of these facts to the reasonable satisfaction of the jury is upon the plaintiff. If the evidence does not so satisfy the minds of the jury that plaintiff complied with his part of the said contract, but they find that the defendant nevertheless accepted the work as done, then the plaintiff is entitled to recover for the work done and materials furnished, outside of the extra work done and extra materials furnished, only their actual value, less payment, if any, made to plaintiff thereon by defendant, and interest on such excess from the time the same was being used."

Tillman, Grubb, Bradley & Morrow and M. M. Baldwin, for appellants.

J. T. Glover, for appellee.

MAYFIELD J.

The complaint contained seven counts; the first four being the common counts, and the last three special counts, for breach of contract to paper the second, third, and fourth floors of the Florence Hotel, of Birmingham, Ala. Demurrers were interposed and overruled, to each count of the complaint. The defendants interposed the plea of the general issue to each count, and special pleas to the special counts. The special pleas were all in the nature of pleas of recoupment. Some were claimed to be pleas in bar and set-off; but they were not such, strictly speaking. While each attempted to set up a defense which was in bar of the action in whole or in part, and attempted to set off damages suffered by defendants from plaintiff's alleged breach of the contract sued on, they were all, strictly speaking, pleas of recoupment, and under our statute, which authorizes it, seek a judgment over against plaintiff for the excess. Without this statute, pleas of recoupment were purely defensive and in bar pro tanto; but under the statute the defendant may have a judgment for the excess, just as, at common law, he could have had under a plea of set-off.

The special pleas in substance set up that the plaintiff unnecessarily delayed the work, and did not proceed with promptness and celerity to complete the work as it had contracted to do, but instead delayed the work so long that defendants, to protect themselves from loss, notified plaintiff, through the architect in charge, that if plaintiff did not...