U.S. Fidelity & Guar. Co. v. Dampskibsaktieselskabet Habil

• Decision Date: 10 November 1903
• Citation: 35 So. 344,138 Ala. 348
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. DAMPSKIBSAKTIESEL-SKABET HABIL.
• Court: Alabama Supreme Court

35 So. 344

138 Ala. 348

UNITED STATES FIDELITY & GUARANTY CO. v. DAMPSKIBSAKTIESEL-SKABET HABIL.

Supreme Court of Alabama

November 10, 1903

Appeal from Circuit Court, Mobile County; Wm. S. Anderson, Judge.

Action by Dampskibsaktieselskabet Habil against the United States Fidelity & Guaranty Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This action was brought by the appellee against the appellant. Thompson & Bailey Foundry & Machine Works entered into a contract with the plaintiff to make certain repairs upon the boiler of the steamship Habil within a specified time, and executed bond, with the defendant as surety, in the sum of $2,000, for the faithful performance of said contract. The contract was signed in triplicate; one part being retained by the agent of the plaintiff; one part was sent by him to the plaintiff, in Norway; and the third part was sent to the Thompson & Bailey Foundry & Machine Company. The work contracted to be done was not completed within the time stipulated therefor in the contract, and the plaintiff claimed that the contractors failed to do the work according to the contract, to the damage of the plaintiff in a sum largely in excess of the amount of the bond, and thereupon the plaintiff brought the present suit against the United States Fidelity & Guaranty Company as surety upon the bond given as aforesaid for the faithful performance of the contract. The complaint, as originally filed, contained only one count, and assigned six breaches of the contract. Demurrers were sustained to the second and third breaches, as set forth in the first count, and subsequently the sixth assignment of breach was withdrawn by the plaintiff. In the first count of the complaint the plaintiff averred the execution of the contract, and set it out in hæc verba, and then further averred the execution of the bond, with the defendant as surety thereon, to secure the faithful performance of said contract. The said first count then averred the breach of said contract complained of. The first assignment of breach alleged that the work was not completed until 40 1/4 days after the time stipulated for the completion of the work. The fourth assignment of breach alleged that the crown sheets put in position by the contractors in repairing the boilers of the steamship Habil were not free from leaks, as the contract stipulated, and that the leaks appeared therein in less than six months from the date of the execution of the bond, and it therefore became necessary to detain the vessel in order to stop said leaks. The fifth assignment of breach averred that the workmanship was not first-class in every respect, as required in the contract, and then averred wherein the workmanship was not first-class, and that the defects in the work had to be remedied within six months after the date of the bond. The sixth assignment of the breach counted upon averred that said work did not remain effective for six months, as guarantied by the contract, but became defective within said period, and then alleged wherein it became defective, and further alleged that it was necessary to make other repairs therein, to the plaintiff's damage. It is not necessary to set out the averments of the second and third assignments of breach complained of. The sixth assignment was subsequently withdrawn.

The defendant pleaded the general issue, and in addition thereto many special pleas, among which special pleas were the following:

"(2) The contract, for the faithful performance of which the bond sued on was given, was materially altered after the execution thereof without the knowledge or consent or ratification of this defendant.

"(3) The contract, for the faithful performance of which the bond sued on was given, was materially altered subsequent to the execution of said bond, without the knowledge or consent or ratification of this defendant.

"(4) The contract set out in said complaint is not the contract executed by Thompson & Bailey, and for the faithful performance of which said bond was given.

"(4 1/2) The contract set out in said complaint is not the contract which was exhibited to this defendant, and for the faithful performance of which said bond was given.

"(5) It is true that the work stipulated in said contract was not done in twenty-three running days, Sundays and legal holidays excepted; but defendant avers that before the expiration of said twenty-three days the said Captain Gudmunsen, as master of said steamship, employed the said Thompson & Bailey to do extra work on said steamship, in connection with the work specified in the contract for the performance of which said bond was given, and by reason of such extra work the work stipulated in said contract was necessarily delayed beyond the said twenty-three days.

"(6) It is true that the work stipulated in said contract was not done in twenty-three running days, Sundays and legal holidays excepted, but defendant avers that the completion of said work was delayed beyond the said twenty-three days by reason of the time in waiting for the arrival of the Norwegian Veritas inspector, whom the said Gudmunsen, as master aforesaid, had employed to come from New Orleans to examine said work; and defendant avers that the progress of said work was stopped, with the consent of said master, until the arrival of said inspector.

"(7) It is true that the work stipulated in said contract was not done in twenty-three running days, Sundays and legal holidays excepted; but defendant says that the work stipulated in said contract was wrongfully stopped, to wit, nine different times, by the engineer of said steamship, who was acting for plaintiffs, in the scope of his employment, and who prevented the prosecution of said work, and thereby prevented the said Thompson & Bailey from completing the said work within the time stipulated therefor.

"(8) The new crown sheets put in position by the said Thompson & Bailey were free from leaks at the time of the completion of said work, and, in order to test the efficiency of said work, a pressure of, to wit, two hundred pounds of cold water pressure, was applied to the boiler, which pressure was amply sufficient to test the same, and said boiler did not leak; and said master thereupon accepted said work, expressing satisfaction therewith.

"(9) The workmanship was first-class in every respect, the said boiler being free from leakage at the completion of the work thereon; and any leaks which subsequently appeared were not caused by any want of skill, care, or diligence in the manner in which said work was done, but were caused by the strain incident to seagoing vessels of the character of the Habil, and the ordinary wear and tear on said vessel."

"(19) The contract, for the faithful performance of which the bond sued on was given, was materially altered by the plaintiff, or by some one for the plaintiff, or with the knowledge or consent of the plaintiff, subsequent to the execution thereof, and without the knowledge, consent, or ratification of this defendant.

"(20) The contract, for the faithful performance of which the bond sued on was given, was materially altered, subsequent to the execution thereof, while in the possession or under the control of plaintiff, without the knowledge, consent, or ratification of this defendant."

"(22) For further answer, separately and severally, to the fourth, fifth, and sixth assignments of breach, this defendant says that it did not in any manner guaranty that any of the work done on said vessel by Thompson & Bailey would remain effective for six months."

"(28) The contract, for the faithful performance of which the bond sued on was given, was materially altered subsequent to the execution thereof, and without the knowledge or consent of this defendant, by the plaintiff, or some person by it authorized thereunto.

"(29) For further answer, separately and severally, to the fourth, fifth, and sixth assignments of breach, the defendant says that it did not in any manner guaranty that the work to be done on said vessel by Thompson & Bailey would remain effective for six months."

To pleas numbered 2, 3, 19, 20, and 29, the plaintiff separately demurred upon the grounds (1) that neither of said pleas alleges that said alteration was made by the plaintiff, or at its instance. or with its knowledge or consent; (2) because said pleas do not allege that said alteration was made by the plaintiff, or by some person by it authorized thereunto.

To each of the pleas numbered 5, 6, and 7, the plaintiff separately demurred upon the following grounds: "(1) Because the plea does not deny that under the contract the contractors were to pay the plaintiff for each day in excess of twenty-three running days--Sundays and legal holidays excepted--that was consumed in making the repairs under said contract, and said plea does not allege that said contractors were delayed by the matters set out in said plea during the entire forty and one-eighth days alleged in the first assignment of breach set out in said complaint; (2) because the plea does not allege that the plaintiff wrongfully caused the contractors to wait for the arrival of the Norwegian Veritas inspector, as set out in said plea."

To plea 8, plaintiff demurred upon the following grounds: "(1) Because said plea admits that the crown sheets put in position by Thompson & Bailey were not free from leaks, by reason of the several defects alleged in said breach, except that they did not leak under the test alleged in said plea (2) because the testing of said boiler, and the acceptance of the contract, and the expression of satisfaction therewith by the master constituted no waiver of the breach of the contract alleged in the fourth assignment of...