U.S. Fidelity & Guaranty Co. v. Town of Dothan

• Decision Date: 28 November 1911
• Citation: 56 So. 953,174 Ala. 480
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. TOWN OF DOTHAN.
• Court: Alabama Supreme Court

56 So. 953

174 Ala. 480

UNITED STATES FIDELITY & GUARANTY CO. v. TOWN OF DOTHAN.

Supreme Court of Alabama

November 28, 1911

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Action for breach of contract by the Town of Dothan against the United States Fidelity & Guaranty Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The allegations of the complaint to which demurrers were overruled sufficiently appear from the opinion.

The following is plea 12: "Comes the defendant in the above-entitled cause, and for further answer to the amended count of the complaint the defendant says that the plaintiff should not recover in this suit, for that at the time of entering into the said contract, which is alleged in said count of said complaint, that the town of Dothan made with R A. Moody for the erection of a certain schoolhouse, which contract was entered into on, to wit, the 17th day of May 1902, and for the faithful performance of which contract the bond sued on in this action was given, the said town of Dothan was without the power or authority to enter into said contract, and had no power or authority to build said schoolhouse. Wherefore the defendant says that the contract was ultra vires, and therefore plaintiff should not recover."

Plea 13: "And for further answer to said complaint the defendant says that plaintiff should not recover in this case, for that the bond, which is sued on, was given, as alleged in said complaint, for the faithful performance of the contract which was entered into by and between said plaintiff and one R. A. Moody for the building or erection of a schoolhouse in the town of Dothan, and that in said contract entered into by and between the town of Dothan, the plaintiff in this case, it was provided that on the 1st and 15th day of each month thereafter, until the work contemplated by this contract is completed, the said R. A Moody shall make up and present to the said town of Dothan a true and correct estimate of the value of the work done upon said building, and the materials furnished and received for actual use in said building, and, upon said estimate being declared correct by the superintendent to be hereinafter provided for, said town of Dothan agrees to pay to the said R. A. Moody 90 per cent. of said estimate, as the same shall be presented in accordance with the tenor of this contract until $16,000 of such total sum shall have been received by the said R. A. Moody. It is further agreed by and between the parties hereto that the town of Dothan, at its cost and expense, shall furnish a superintendent, who shall at all times have free and unmolested observation and cognizance of the work being done upon said building, and who shall represent said town of Dothan in seeing and having said work done according to the plans and specifications, and shall direct at all times and about all things the interest of the said town of Dothan in the construction of said building, so long as said town of Dothan may keep such superintendence. The defendant says that, notwithstanding said requirement and stipulation as contained in said contract, the plaintiff wholly failed and refused to observe and keep such provisions in said contract, and did on, to wit, August 10, 1910, dismiss the superintendent which it had theretofore employed under and in accordance with the provisions of said contract, or said superintendent resigned his position as such superintendent, or quit the service of defendant, and plaintiff did not thereafter employ another superintendent to have charge of said work, and whose duty it was to look after said work, and to direct and take care of all things pertaining to the interest of the town of Dothan, as set forth in said contract, and that from the time of the dismissal of the superintendent who was first employed under said contract as hereinbefore set out there was never employed a superintendent by the town of Dothan, the plaintiff in this case, until after to wit, November 1, 1902."

The grounds of demurrer numbered 2 and 5 to the fifth plea are as follows: (2) "Because it does not appear that the defendant was damaged by the matters and things set out in said plea." (5) "Because said plea does not allege or set forth the facts which show that defendant sustained damages equal to or exceeding the amount claimed in this suit by reason of the breach of the contract as set forth in this plea." Cause 2 to plea 7 is as follows: "Said plea fails to allege that by reason of the acts therein charged to have been done by plaintiff defendant suffered any injury or sustained any loss."

Coleman, Dent & Weil, for appellant.

B. F. Reid, for appellee.

SIMPSON J.

This action is brought by the appellee to recover damages for the breach of the conditions of a bond executed by the appellant, conditioned for the faithful performance, by one R. A. Moody, of a building contract.

There was no error in overruling the demurrer to the complaint as amended. A demurrer is addressed only to defects apparent on the pleading. The complaint sets out in full the conditions of the bond, alleges that said Moody entered into a contract to build a schoolhouse, according to plans and specifications, for $19,840, for the faithful performance of which said bond was executed, and the breach is that said Moody, after having done a large amount of work, abandoned it and refused to carry out his agreement, "without fault on plaintiff's part, and plaintiff was forced to take charge of and complete said...