Trammell v. Robinson

• Decision Date: 04 October 1948
• Docket Number: 5 Div. 249.
• Citation: 37 So.2d 142,34 Ala.App. 91
• Parties: TRAMMELL v. ROBINSON.
• Court: Alabama Court of Appeals

37 So.2d 142

34 Ala.App. 91

TRAMMELL v. ROBINSON.

5 Div. 249.

Alabama Court of Appeals

October 4, 1948

Jacob A. Walker, of Opelika, and R. C. Wallace of LaFayette, for appellant.

Chas. S. Moore and Hines & Hines, all of LaFayette, for appellee.

HARWOOD Judge.

The appellant, F. B. Trammell, Jr., was the plaintiff below. The defendant was W. F. Robinson.

The complaint contained four counts, the first three being common counts, respectively, for money due by account, for work and labor done, and for goods furnished.

The fourth count was a special count, wherein the plaintiff sued defendant for the same amount stated in the common counts for work done under an alleged special contract for the grading of runways and for working a road and for lumber furnished in such work, under a contract made by plaintiff with the defendant 'whereby the plaintiff during the term extending from February 1, 1946, to October 26, 1946 furnished a bulldozer and an operator for grading said runway for planes, and for constructing a road and furnishing materials, towit, lumber, for the construction of a building on said premises.' This count further claimed an original contractor's lien on the premises described and prayed that the lien be established and the property be sold for the satisfaction of the lien.

The defendant filed a plea of the general issue (pleas 1 and 2) and four special pleas. Three of these special pleas were in recoupment, and are as follows:

'3. Defendant claims of the plaintiff due him by recoupment $5000.00 damages arising out of the same transaction alleged in the complaint the foundation of this suit, for breach of an oral contract entered into by plaintiff and defendant on or about, the 1st day of March, 1946, by the terms of which contract plaintiff agreed with defendant for plaintiff to pull trees by the stump off of proposed runway on the property of the defendant as described in the complaint and to move all brush, stumps and wood off said proposed runway, and to complete the pulling of trees and removing the brush, stumps and wood off the proposed runway in six or eight weeks, and defendant agreed to give plaintiff all the trees, bursh, stumps and wood on said runway and on part of the property described in the complaint as compensation for the above, and the defendant avers and states that said plaintiff failed and refused to perform his part of the contract all of which the defendant lost by reason of the plaintiff's breach of the contract as aforesaid and in this; the plaintiff left many stumps, logs, brush and wood on said proposed runway but took the bulk of the merchantable timber and wood off defendant's property and defendant has gone to much expense in having said stumps, logs, brush and wood moved off the proposed runway. And defendant avers that he complied with his part of the agreement.

'4. Further answering said complaint defendant says that the plaintiff is due him by recoupment $690.00 damages for breach of a verbal agreement, said damages arising out of the same transaction alleged in the complaint the foundation of this suit, entered into by plaintiff and defendant on or about the 1st day of April, 1946, by which the plaintiff agreed with the defendant to cut all trees off a runway on property of defendant described in the bill of complaint and to furnish 15,000 feet of lumber to the defendant, and defendant agreed to give plaintiff trees, wood, stumps and logs on said runway and on part of defendant's property, and defendant avers and states that plaintiff failed and refused to perform his part of the contract in that he did not cut all of said trees on said runway and delivered only 1200 feet of lumber to the damage of the defendant for the breach of the contract as aforesaid. And the defendant alleges that he has fulfilled his part of the contract.'

'6. Further answering said complaint as he says that the plaintiff is due him by recoupment for work and labor done, the sum of $1900.00 arising out of the same transaction alleged in the complaint the foundation of this suit, extending from, to-wit: March 1, 1946, to December 25, 1946, which sum of money, with interest thereon is still unpaid.'

Plea 5 was filed specifically to Count 4, and to no other count, and averred that 'the supposed cause of action therein mentioned did not accrue to the plaintiff within six months next before the filing of the claim or lien and is therefore barred by the statute of limitation.'

Demurrers were filed to each of the pleas in recoupment, the grounds assigned going to the sufficiency of the averments of the pleas, and also asserting that said pleas related to a contract different from the claim sued on.

Demurrer to plea 5 was on the grounds that said plea was not an answer to the whole of count 4, but only one aspect thereof, and that the limitation fo six months did not apply to said count.

Plaintiff's demurrers to defendant's pleas were overruled, except as to plea 2, to which the demurrer was sustained. For answer to pleas 3, 4 and 6, plaintiff averred that the allegations thereof were untrue.

Issue was thereupon joined upon defendant's plea of the general issue, on plea 5, and on plaintiff's answer of the general issue to pleas 3, 4, and 6.

The jury returned a general verdict in defendant's favor and assessed his damages at $500.

Plaintiff's motion for a new trial was overruled, and plaintiff duly perfected his appeal to this court.

The evidence presented by the plaintiff in the main consisted of testimony of the plaintiff. He testified that about 1 February 1946, the defendant told him he was building an airport in Tom's bend and wanted the plaintiff to pull the trees down on the runways with his tractor. Plaintiff entered into an agreement with defendant to do this work, and was to receive the saw timber and wood from the pulled trees as compensation. According to plaintiff no limitation as to the time within which the work was to be done was contained in the agreement. About two weeks later, or around the middle of February the plaintiff entered upon the work of pulling down the trees.

After entering upon this contract, the plaintiff acquired a bulldozer on or about 2 April 1946. To operate this bulldozer plaintiff employed one Paul Ray, at wages of one dollar per hour.

Plaintiff asserts that about four weeks after acquiring this bulldozer defendant requested that he do the preliminary grading on the runways with the bulldozer in order that defendant could finish the grading with a pan grader. For this work with the bulldozer plaintiff was to receive eight dollars per hour.

Still later plaintiff asserts a third contract was entered into between him and defendant whereby plaintiff was to use the bulldozer in grading a road that led into the airport.

Plaintiff testified that he obtained about $400 worth of timber and about $100 worth of wood from the trees that he pulled down.

Plaintiff claimed that defendant was due him $1976 on the runway grading agreement, $124 for grading the roadway, and $77.50 for lumber furnished defendant at his request, or a total of $2201.50.

Written memoranda of dates and hours the bulldozer was used, kept by plaintiff on a weekly basis, was introduced in evidence.

According to plaintiff the last of the work done by him on the runways was during the week of August 3, 1946, and the last of the work done on the road was on 23 October 1946.

On 22 January 1947 plaintiff filed his notice of claim of a lien on the defendant's airport property, setting out that the lien was claimed to secure an indebtedness of $2201.50 with interest from 26 October 1946, for work done in grading runways, and roadwork, and lumber furnished on the land described in the claim.

Mr. Hollis Allen, a civil engineer who did grading work with a tractor and pan, testified that the reasonable rental of a bulldozer with operator was $8 to $10 per hour.

For the defense Mr. Robinson, the defendant, testified that he saw the defendant first on 25 February 1946. At this time he learned that plaintiff had a tractor. Defendant then told plaintiff he intended purchasing a piece of property to make into an airport and inquired if plaintiff could pull over the trees on the proposed right of ways. They then went to the property and plaintiff said he could do the work. Defendant then told plaintiff that as soon as he completed the deal for the airport site he would see him. According to defendant no agreement was made at this time.

Defendant obtained the title to the airport site on 27th or 28th of February 1946. Thereafter about the 1st or 2nd of March 1946 he again contacted the plaintiff and they entered into an agreement whereby plaintiff was to pull down the trees on the right of ways and drag them and the stumps off, for which work the plaintiff was to receive the timber and wood from the trees so pulled. Defendant further asserted that plaintiff agreed to so clear the right of ways in from six to eight weeks from the date of the agreement, though he was to have all the time he wanted to remove the timber and wood after it had been pulled off the right of ways. These right of ways were approximately 400 feet wide and one half mile long.

Defendant further testified that at the time the agreement was made he had shown plaintiff the boundaries of the proposed right of ways, and had further shown him 'in the same bunch of timber we talked about' a stand of 'might heavy timber' in a lagoon at one end of a runway, and had told the plaintiff he had entered into an agreement with a Mr. Sorrell concerning this timber whereby Mr. Sorrell was to saw the trees off at the stump and in return was to deliver to defendant 15,000 feet of lumber from the trees so removed.

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