Stephenson Brick Co. v. Bessemer Engineering & Construction Co.

• Decision Date: 08 November 1928
• Docket Number: 6 Div. 18
• Parties: STEPHENSON BRICK CO. v. BESSEMER ENGINEERING & CONSTRUCTION CO.
• Court: Alabama Supreme Court

118 So. 570

218 Ala. 325

STEPHENSON BRICK CO. v. BESSEMER ENGINEERING & CONSTRUCTION CO.

6 Div. 18

Supreme Court of Alabama

November 8, 1928

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Assumpsit by the Bessemer Engineering & Construction Company against the Stephenson Brick Company. From a judgment granting plaintiff's motion for a new trial, defendant appeals. Affirmed.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellant.

Ernest Matthews, of Birmingham, for appellee.

GARDNER J.

The Bessemer Engineering & Construction Company instituted this suit against the Stephenson Brick Company to recover a balance due for excavation of a site for the construction of a brick plant for said Stephenson Company at Cordova, and recovered a judgment of one cent. Upon motion of the plaintiff the court set aside the judgment, and granted a new trial. From this order the defendant has prosecuted the appeal.

The defendant insists the plaintiff was not entitled to recover a judgment in any sum, and that there existed therefore no justification for the court to set aside a judgment in its favor on account of its inadequacy in amount. Defendant's most serious contention to this end is rested upon the theory the evidence disclosed a written contract between the parties which defendant had met by full payment of the price therein stipulated, and that other proof offered by plaintiff, over defendant's objection, was inadmissible for the reason that it was in contradiction of the written contract. The rule contended for is well understood and has been given frequent application in our decisions. Miller Bros. v Direct Lumber Co., 207 Ala. 338, 92 So. 473; Johnson-Brown Co. v. Produce Co., 212 Ala. 377, 102 So. 606; Bissell Motor Co. v. Johnson, 210 Ala. 38 97 So. 49; Capital Lumber Co. v. Millinix, 208 Ala. 266, 94 So. 88; Ex parte South, 205 Ala. 31, 88 So. 221; Ala. Trunk Co. v. Hauer, 214 Ala. 473, 108 So. 339.

But this rule is inapplicable to the case as here presented. There was no written contract signed by the respective parties. There was an offer or proposal in writing submitted by plaintiff to defendant to do the work for a "lump sum price" of 47 1/2 cents per yard.

Plaintiff's contention is that this offer was for earth excavation and not rock, but that if rock was encountered the parties were to agree on a reasonable price therefor. In the written proposal "earth excavation" and "rock excavation" were named, but blank space opposite for the price, followed on the next line by the "lump sum price." There was no written acceptance of this offer, but for the purpose in hand none was necessary if accepted by defendant and acted upon by the parties. "Acceptance of a written contract as such is sufficient though it is not signed by the party accepting it." 2 Williston on Contracts, p. 1225; Manufacturers' & Merchants' Inspection Bureau v. Everwear Hosiery Co., 152 Wis. 73, 138 N.W. 624, 42 L.R.A. (N.S.) 847, Ann.Cas.1914C, 449. Such an acceptance, however, to become effective as a binding contract must be positive and unambiguous. 1 Williston on Contracts, p. 127. "An acceptance, to be effectual, must be identical with the offer and unconditional." 13 Corpus Juris, 281.

The written proposal was handed an officer of defendant company on the streets in Birmingham, and according to plaintiff's evidence the parties immediately walked a few steps into defendant's office and discussed the same where it was explained and agreed that the offer was for "earth and shale only" and if solid rock was encountered a...