Shriner v. Craft

• Decision Date: 16 December 1909
• Citation: 51 So. 884,166 Ala. 146
• Parties: SHRINER v. CRAFT.
• Court: Alabama Supreme Court

51 So. 884

166 Ala. 146

SHRINER v. CRAFT.

Supreme Court of Alabama

December 16, 1909

Rehearing Denied Feb. 26, 1910.

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by John Craft against William A. Shriner. From a judgment for plaintiff, defendant appeals. Affirmed.

It appears from the record that Mary R. Shriner attached her signature to the contract, and was originally sued; but the complaint was afterwards amended upon her demurrer and motion, so as to strike her as a party defendant, whereupon the other defendant moved for a discontinuance because of the striking out of the party defendant. The other errors complained of are the sustaining of appellee's demurrer to the second and third pleas of defendant; and they are as follows:

"(2) That, subsequently to the making of said contract set out in the complaint, the plaintiff and the defendant modified said contract by mutual agreement, in this: The defendant requested the plaintiff in substance as follows: At the end of each week during the time that the defendant should be at work on said contract on said building to advance a sufficient amount to satisfy the laborers on said building and the plaintiff agreed with the defendant to so advance at the end of each week a sufficient amount to pay the laborers that work on said building.

"(3) And for further answer to said complaint the said William A. Shriner alleges that, after he entered into a contract with the plaintiff, it was agreed between him and the plaintiff that the plaintiff should furnish at the end of each week the money necessary to pay the men employed by the defendant in the erection of said houses; and said defendant alleges that the plaintiff breached such agreement, in that he failed to furnish at the end of each week the money necessary to pay the laborers the defendant had employed in erecting said houses; and the defendant avers that such breach of the agreement by the plaintiff occurred before he (the defendant) abandoned the contract."

The demurrers were: To the second plea, that it does not appear that plaintiff failed to comply with his promise to advance and that it does not appear that there was any consideration for the promise to advance; and no justification is shown on the part of the defendant for his breach of the contract. To plea 3, because it does not appear that plaintiff elected to rescind such contract on account of the alleged breach; or that defendant's promise was dependent on plaintiff's promise to advance; and also no consideration.

The other pleas set up the same matter in an amplified form and with more particularity, except the ninth, which is as follows:

"(9) The defendant, as a defense to the action of the plaintiff, saith that at the time the said action was commenced the plaintiff was indebted to him in the sum of $250 damages, arising in connection with the contract described in the complaint, in this: That the buildings provided for to be erected under the contract described in the complaint were to be built upon lots of land lying within what are known as the 'fire limits' of the city of Mobile, within which limits it was unlawful to erect frame buildings, such as was provided in the contract described in the complaint should be erected on said lot, and the plaintiff agreed with the defendant that, because he was a member of the general council of the city of Mobile, he would have an ordinance passed by the general council of the city of Mobile excepting these lots from the provisions of said ordinance and permitting defendant to erect plain buildings on said lot, and that he would do this sufficiently in advance of the commencement of the contract to enable the defendant to begin the erection of buildings upon the day prescribed by the terms of the contract; but defendant says that plaintiff negligently failed to secure the passage of such ordinance as would exempt the buildings to be erected under the contract, from the provisions of law establishing the fire limits of the city of Mobile, until two weeks had elapsed after the time defendant was required to commence constructing said building under the terms of the contract, and the defendant says that by the said delay of the plaintiff he was damaged in the sum of $250, which he hereby offers to set off against the demand of the plaintiff, and he claims judgment for the excess."

Demurrers to this plea were that the agreement alleged is void for uncertainty and because it does not set out the time when the alleged agreement was made. The other facts sufficiently appear in the opinion, with the exception that the suit was upon the breach of the contract made by Shriner to construct certain buildings for Craft, and which contract seems to have been abandoned by Shriner.

Frederick G. Bromberg, for appellant.

Gregory L. & H. T. Smith, for appellee.

SIMPSON J.

This is an action by the appellee against the appellant, for damages for the breach of a contract, by which the defendant undertook and agreed to furnish material and build two houses in accordance with the contract set out in the record.

The first assignments of error insisted on (numbered 1 and 2) are to the sustaining of the demurrer of Mary R. Shriner, on the ground that the complaint shows on its face that Mary R. Shriner was not a party to the contract sued on, and the third, fourth, and fifth assignments relate to the same subject, to wit, to the refusal of the court to grant the motion for a discontinuance of the case, because of the amendment of the complaint, by striking out the name of said Mary R. Shriner.

There was no error in either action of the court. The contract sued on is set out in the complaint, and it states distinctly that it is between W. A. Shriner and John Craft. The fact that Mary R. Shriner's name appears at the end of the contract with W. A. Shriner does not make it her contract. The statute is clear on the right of amendment by striking out parties, and our decisions are uniform to the effect that the striking out of an improper party does not work a discontinuance of the case. It cannot be material how the fact comes to the knowledge of the court that such person is an improper party; whether it appears upon the face of the pleading, and is brought to the attention of the court by demurrer or is subsequently made to appear in the evidence. Section 5367, Code of 1907, and cases cited.

A number of the assignments of error are grouped by the appellant in his brief, being questions raised on sustaining motions to strike and demurrers to pleas, which set up a modification of the contract. The first proposition is correct, to wit, that the parties to a written contract may, by mutual parol agreement, modify the contract; but the second proposition, to wit, that said modification is binding without any new consideration, is not so clear. While there are some expressions in the case which seem to dispense with the necessity of a consideration to a modification of a contract, yet a modification can be nothing but a new contract, and must be supported by a consideration like every other contract. An analysis of the cases shows that it would be more accurate to say that the mutual obligations assumed by the parties, at the time of the modification, constitute a sufficient consideration, and if one of the parties does not assume any obligation or release any right, then a promise by the other is a nudum pactum and void.

Where a teacher, who had been employed at an annual salary, agreed to give up his definite contract and to serve during the pleasure of the board, it was held that the change in the terms of the teacher's service, furnished a sufficient consideration for the promise of increased compensation. Hildreth v. Pinkerton Academy, 29 N.H. 227, 235.

Where an agreement to do blasting on certain terms was made upon the representations of the defendant as to the quality of the rock to be blasted, and it was found that the rock was much harder, and useless to the party blasting, in place of being useful, as represented, a new agreement to pay more for the work was supported by the additional work which the other party agreed to perform. Osborne v. O'Reilly, 42 N. J. Eq. 468, 475, 9 A. 209.

There is a class of cases, in which the original contract had been abandoned, and the parties afterwards entered into a new parol contract for the performance of the same work on different terms, and the contract was held to be valid. The theory of these cases seems to be that either party may abandon the contract and subject himself to the penalty or liability therefor, and then the parties are at liberty to make another contract, in which the original work, stipulated for in the first contract, may be a sufficient consideration for the second, leaving the parties to their remedies on account of the abandonment of the first contract, unless special provision be made to release the same. Munroe v. Perkins, 9 Pick. (Mass.) 298, 20 Am. Dec. 475, 478; Coyner v. Lynde, 10 Ind. 282, 284; Morrison v. Heath, 11 Vt. 610; Koerper v. Royal Inv. Co., 102 Mo.App. 543, 551, 77 S.W. 307.

Other cases have gone a step further, and have held that, if one party finds himself in such a position that he cannot carry out the contract on the terms provided, and notifies the other party that he...