Stratton v. Fike

• Decision Date: 16 December 1909
• Citation: 51 So. 874,166 Ala. 203
• Parties: STRATTON v. FIKE.
• Court: Alabama Supreme Court

51 So. 874

166 Ala. 203

STRATTON v. FIKE.

Supreme Court of Alabama

December 16, 1909

Rehearing Denied Feb. 26, 1910.

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by Edward G. Fike against Georgia K. Stratton. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The facts sufficiently appear in the opinion. The following charges were refused to the defendant: (1) "The court charges the jury that if they are reasonably satisfied from the evidence in this cause that all the delay in the completion and turning over of the building after the 20th day of December, 1906, was not caused by the defendant, or by causes beyond the control of the plaintiff, one or both, then in that event you should in finding your verdict allow the defendant the sum of $10 per day for each and every day's delay beyond the said 20th day of December, 1906, not caused by the defendant, or by causes beyond the control of the plaintiff, one or both, not exceeding the sum of $1,200 in all; and if the jury are further reasonably satisfied from the evidence in this cause that the plaintiff in this case failed to perform his contract with defendant in any other particular, and thereby damaged the defendant, the jury should add this damage to the sum, if any, for the delay aforesaid not caused by the defendant, or by causes beyond the control of the plaintiff, one or both. From this aggregate sum the jury should deduct whatever amount is shown by the evidence to be due the plaintiff, if any, and render a verdict for the defendant for the balance, if any." (2) "The court charges the jury that if they are reasonably satisfied from the evidence in this cause that 120 days or more of the delay in the completion and turning over of the building after the 20th day of December, 1906, was not caused by the defendant, or by causes beyond the control of the plaintiff, one or both, then and in that event you should in finding your verdict allow the defendant the sum of $1,200 and if the jury are further reasonably satisfied from the evidence in this case that the plaintiff in this case failed to perform his contract with the defendant in any other particular, and thereby damaged the defendant, you should add this damage to the sum of $1,200. From this aggregate sum you should deduct whatever amount shown by the evidence to be due the plaintiff, if any, and render a verdict for the defendant for the balance."

B. B Boone and J. G. Hamilton, for appellant.

Roach &amp Chamberlain, for appellee.

MAYFIELD J.

Appellee sued appellant on the common counts, for work and labor done, and material furnished in remodeling and improving a residence. The defendant pleaded the general issue, and several special pleas of recoupment and set-off as per the contract under which the work was done and the material furnished. The contract set forth in the special pleas, and conceded to be the one under which the work was done, was as follows:

"State of Alabama, County of Mobile.

"This instrument made and entered into by and between Peter J. Hamilton, as agent for Georgia K. Gage, of the first part, and Edward G. Fike, of the second part witnesseth: That for mutual consideration said parties do contract together as follows:

"(1) Said Hamilton hereby employs said Fike as contractor to remodel and complete the brick building east of the main dwelling on the Ketchum lot at the southeast corner of Government and Chatham streets, and otherwise to improve and complete in first class workmanlike order, said building for residence purposes, with wiring, sewerage and water complete, all according to plans and specifications by George D. Hulburt and Company, omitting corner ornamentation of outside walls.

"(2) Said Hamilton agrees to pay said Fike for such work the sum of four thousand, nine hundred and thirteen dollars, on proper certificates of the architect, in instalments as follows: On Saturdays up to fifteen per cent of materials delivered and work performed not to exceed one thousand two hundred and fifty dollars in the first thirty days.

"(3) Said work is to be completed and the building turned over to said Hamilton, or his principal, on or before the 20th day of December, 1906. Should said building not be turned over complete, said Hamilton may

retain out of the compensation hereinabove provided for the sum of ten dollars a day until the building is so turned over, delays beyond contractor's control excepted.

"(4) Said work is to be superintended and under the direction of Willis R. Biggers, or such other architect as said Hamilton may designate.

"Witness our hands and seals in duplicate at Mobile, this first day of Sept., 1906.

"[Signed] E. G. Fike, [Seal.]

"P. J. Hamilton, [Seal.]

"Agent for Ga. K. Gage."

"Signed, sealed, and delivered in the presence of: (Corrections before execution.) A. L. Staats."

The only material question raised on this appeal is whether section 3 of the above contract shall be construed as liquidated damages or as a penalty. It is usually a more or less difficult question to determine whether stipulations of this kind are in the nature of liquidated damages or of penalties. No certain or fixed rule can be given for determining in all cases whether the stipulation is the one or the other. The question must therefore be determined in each particular case upon the facts and circumstances of the given cause. The intention of the parties to the contract, however, must control in all cases, if that can be ascertained. The object and end to be attained in all constructions of contracts is to ascertain the intention of the parties, and this is no exception to the rule.

This court, among others, has announced some rules or laws of construction applicable to such stipulations in contracts. In Hooper's Case, 69 Ala. 343, the court, through Brickell C.J., said: "In the determination of this question, as in the determination of all other questions touching the construction of contracts, the governing guides are the subject of the contract and the intention of the parties. Considering this particular question, said Chief Justice Collier in Watts v. Sheppard, 2 Ala. 434: 'The first general principle in the construction of all contracts is that they shall be so expounded as to carry into effect the intention of the parties. To this end, the court should, if necessary, look to the subject-matter of the contract, the situation of ...