Tutwiler v. Burns
| Decision Date | 06 April 1909 |
| Citation | 160 Ala. 386,49 So. 455 |
| Parties | TUTWILER v. BURNS. |
| Court | Alabama Supreme Court |
Appeal from City Court of Birmingham; C. C. Nesmith, Judge.
Action by Hendy A. Burns, administrator of John L. Burns, against E M. Tutwiler, for breach of a building contract. Judgment for plaintiff. Defendant appeals. Affirmed.
The contract was objected to because, in the preamble of the same, a blank was left so as not to state who was the party of the first part in said contract, and on the further ground that there had been an alteration or change in the terms of the contract. It seems that, when the architect drafted the contract, he left a blank to be filled in with the contractor's name, and inserted the name of the builder as far as the second part. The amount of the bid was also left blank, was afterwards put in with pencil, and after the contract was delivered the pencil mark was traced over with red ink, showing the price to be charged for the building by the contractor, Burns. When the contract was ready, and had been signed by Tutwiler, it was carried by the agent of Tutwiler, one Mr. Smith, to Burns' office, and, Burns not being found in, it was left there, to be executed and returned to Mr. Smith. It was shown without serious controversy that Burns signed the contract, and his signature was not disputed. The contract was in the usual form of builders' contracts. The testimony objected to as the statement of Burns on the former trial was that given by Mr Lowe as to what Burns testified to on the previous trial about Burns having been driven off the work before having completed the contract.
The following charges were refused to the defendant: (11) "If you believe from the evidence that the building contract introduced in evidence was, pursuant to the agreement of the party, drawn up in duplicate, and both copies left with John L. Burns for execution, and that after signing one or both of said copies the said Burns did not deliver either of said duplicate copies to the defendant or his agent, you must find for the defendant." (5) "If you believe from the evidence that A. D. Smith left the building contract introduced in evidence at the office of Burns that Burns might examine same, and not with the intent of making it the binding agreement of Burns and Tutwiler, you must find for the defendant." (8) "I charge you that the mere leaving at the office of John L. Burns of the building contract, although the same had attached thereto the genuine signature of E. M. Tutwiler, would not make it a binding contract, unless it was left there by A. D. Smith with the intention of making it, from the moment it was left there, a contract between Burns and Tutwiler."
Assignment 18 is as to a charge as follows: "I charge you that there is no evidence in this case that Burns was not paid for any brick, placed by him on or near the lot on which the building was erected, which was used in said building." Assignment 19: "There is no evidence in this case that any lumber belonging to Burns was used in the building constructed by Bowman." Assignment 22: "I charge you that there is no evidence in this case that John L. Burns lost any brick, lime, or lumber on account of any act of defendant." Assignment 24: "I charge you that there is no evidence in this case that defendant got the benefit of any work done by John L. Burns, or of his employé, or of any building material belonging to him."
The questions quoted in assignments 6 and 8 are as follows: (6) "Well, how much lumber did your father put on the lot?" (8) "State whether or not Hugh Bowman used the excavations your father made there."
The charge copied in assignment 21 is as follows: "I charge you that in deciding whether Burns would have made a profit on the building, if you believe from the evidence he is entitled to recover, you may take into consideration any evidence as to his skillfulness or unskillfulness of the contractor and the chances and uncertainties which accompany building enterprises, including the possibility of bad weather, labor troubles, and unfortunate accidents."
The special charge made the basis of assignment 20 is as follows "I charge you that the burden of proof in this case to establish to your reasonable satisfaction the truth of the averments of the complaint, or of some count thereof, is on the plaintiff, and if any member of the jury is not so reasonably satisfied you cannot find for the plaintiff."
Percy & Benners, for appellant.
Frank S. White & Sons and F. M. Lowe, for appellee.
On former appeal in this case (not reported) it was ruled that the contract was admissible in evidence. No reason has been presented to us justifying, we think, repudiation of that holding. Several of the questions reargued are thereby eliminated from further consideration.
It was alleged in count 1 of the complaint that performance by plaintiff of the contract to construct the building was prevented by the issuance of an injunction at the instance of the defendant, the owner. It was objected, by demurrer to this count, that such averment did not show a breach, and that the maxim reading, "The act of the law does injury to no one," applies to point the ground of the demurrer stated. We do not construe the averment as complaining of an improper use of the injunctive process, but that the office and effect of the averment was to show a breach of the contract by the appellant--a breach resulting in the prevention of the plaintiff from further performing it on his part. It (the averment) was employed to charge the defendant with an act evincing a purpose on his part, and effecting it, to prevent performance by Burns. That a contractor may breach his contract by means afforded by injunctive processes invoked by him does not, it occurs to us, relegate the injured adversary in the contract solely to an action on the injunction bond. Of course, if the defendant in the injunction suit was undertaking to recover on the bond, or to recover for maliciously procuring an injunction to issue, his action would be premature until some disposition of the injunction had been made. This, and nothing more, is the pertinent announcement in Tatum v. Morris, 19 Ala. 302, 306, 22 Cyc. p. 1061, and 1 Spelling on Ex. Relief, § 964, the citations presented in this connection for appellant. It was not contended below that another action was pending, involving in any degree the matter of the contract for the breach of which this action was brought.
The demurrer to the second count, overruled by the court asserted the objection that no breach of the contract sued on was averred therein, in that the averment that defendant refused to allow plaintiff to carry out his part of the contract is not the...
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