Southern Bitulithic Co. v. Hughston

• Court: Alabama Supreme Court
• Writing for the Court: SAYRE, J.
• Citation: Southern Bitulithic Co. v. Hughston, 177 Ala. 559, 58 So. 450 (Ala. 1912)
• Decision Date: 08 February 1912
• Parties: SOUTHERN BITULITHIC CO. v. HUGHSTON.

58 So. 450

177 Ala. 559

SOUTHERN BITULITHIC CO. v. HUGHSTON.

Supreme Court of Alabama

February 8, 1912

Rehearing Denied May 1, 1912.

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Action by W. A. Hughston against the Southern Bitulithic Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The action was begun by attachment, and the first count declared for the breach of a contract between Hughston and the defendant company, wherein the plaintiff contracted with the defendant to do all the grading for the defendant necessary for the execution of its contract with the city of Decatur relative to the improvement of certain streets and to do certain hauling. The breach declared on is that after going to great expense to procure teams, etc., and the employment of laborers, the defendant without fault on the part of the plaintiff suspended said improvements and required plaintiff to delay the performance of said contract for a long time. Count 2 is the same for all practical purposes. Counts 3 and 4 are the common counts for work and labor done. Count 5 sets out the contract, alleges plaintiff's willingness and ability to perform, alleges the delay of four or five months with the exception of a few days, and consequent damages. Count 6 is practically the same.

Callahan & Harris, of Decatur, for appellant.

Wert &amp Lynne, of Decatur, for appellee.

SAYRE J.

Demurrers to counts 1 and 2 were sustained. On the motion for a new trial the court required plaintiff to remit such damages as might have been recovered under counts 3 and 4, the common counts, as a condition upon which the motion would be overruled, which was accordingly done. We are to consider therefore, only those questions which arose under counts 5 and 6.

These counts claimed damages as for the breach of a contract between the parties for that the plaintiff was put to great expense, and caused to lose profits which otherwise he would have realized, by reason of the defendant's wrong in delaying and interrupting plaintiff in the performance of a contract between them. The general purport of the contract dated on September 12, 1907, is sufficiently shown by the quotation we here make: "Whereas the party of the second part (defendant below, appellant here) has entered into a contract with the city of Decatur * * * for the construction of certain improvements, * * * the parties hereto have agreed as follows: First party contracts and agrees to do all grading second may require for the execution of its above-mentioned contract at the consideration of forty-five cents per cubic yard." At the time the parties entered into this contract, defendant had six several contracts with the city of Decatur, all entered into on September 3, 1907 by which defendant had agreed to do the work of improvement on different streets which had been provided for in six different ordinances. All these contracts between the city and defendant provided that: "The contractors * * * hereby agree to protect and save the city harmless from any and all claims for damage from the obstruction of the street or streets, or from any neglect of the contractors, * * * and to execute bond * * * to indemnify and save harmless the said city * * * from all suits or actions of every name or description brought against any of them for or on account of any injuries received or sustained by any party or parties, by or from the said contractors, their servants or agents, in the construction of the work, * * * or by or on account of any act or omission of the said parties of the second part, or their agents, in the performance of this agreement." These contracts refer to the several improvement ordinances, and these ordinances in turn refer to full details, drawings, plans, and specifications of the work, provided for in each case, to be prepared by the city engineer and placed on file in his office. Contracts and ordinances were in evidence; but there was no attempt to prove details, drawings, or any plans and specifications. Plaintiff was permitted, however, over defendant's objection, without producing plans and specifications, to testify to the amount of excavation necessitated by the improvements and the amount done at the time when the first serious interruption occurred. On this state of the case, appellant makes a number of points which were reserved in the court below, and which we think may be properly disposed of on considerations to be stated presently. It contends that the contract with the city was void; that there was no proof that Ingram, by whom, as president, the alleged contracts between defendant and the city purported to have been executed on behalf of the defendant, without the use of a corporate seal, was authorized to execute same; that no one, or all, of such contracts were identified as the contract between defendant and the city referred to in the contract between the parties to this action; that the contracts between defendant and the city were erroneously admitted in evidence; that there was no legal proof of the amount of excavation required for the execution of the contract between the parties; and that for one or the other of these reasons, or all of them, the defendant should have had the affirmative charge.

It may be that certain stipulations of the contracts between defendant and the city constituted an abuse of corporate power, in that they imposed unlawful burdens on the taxpayers, and, for that reason, the contracts might have been avoided in equity at the suit of any one affected; or it may be that the mandatory requirements of the charter of the city of Decatur were such as to render the contract void so that defendant would not have been allowed to recover in a suit brought by it against the city. Inge v. Mobile Board of Public Works, 135 Ala. 187, 33 So. 678, 93 Am. St Rep. 20. We have not been at pains to investigate the provisions of the charter for the reason that plaintiff's contract was collateral to the contract between defendant and the city and referred to that contract for the purpose only of describing the nature and extent of the work to be done; plaintiff took nothing by the obnoxious provision; his contract was, not to perform defendant's contract with the city, but to perform a certain part of it, lawful in itself, for a lawful consideration. Further, it occurs to us that defendant ought not to have been allowed, on an objection to evidence, to lay the consequences of an unpleaded illegality at the door of plaintiff, who was not a party to the alleged illegal contract. Most of the other errors assigned in this connection are answered by the...