Varner v. Hardy

• Decision Date: 07 June 1923
• Docket Number: 5 Div. 851.
• Citation: 209 Ala. 575,96 So. 860
• Parties: VARNER v. HARDY.
• Court: Alabama Supreme Court

96 So. 860

209 Ala. 575

VARNER v. HARDY.

5 Div. 851.

Supreme Court of Alabama

June 7, 1923

Appeal from Circuit Court, Coosa County; W. L. Longshore, Judge.

Action on common counts by Ira Hardy against W. A. Varner. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. Reversed and remanded.

L. H Ellis, of Columbiana, for appellant.

J. W Strother, of Dadeville, for appellee.

THOMAS J.

The complaint is based on the common counts, to which defendant replied by the general issue and pleas 6 and 7 of set-off. To special pleas, including No. 10, demurrer was sustained.

When a party, without sufficient cause, abandons a contract, leaving unperformed the work contracted for, he cannot recover, under the common counts, on a quantum valebat or quantum meruit. Martin v. Massie, 127 Ala. 504, 29 So. 31; Worthington v. McGarry, 149 Ala. 251, 42 So. 988; Carbon Hill Coal Co. v. Cunningham, 153 Ala. 573, 44 So. 1016; Maxwell v. Moore, 163 Ala. 490, 50 So 882. An exception to the general rule is that, although the evidence discloses the special agreement, when the same has been executed and fully performed and no duty remains but the payment of the price in money by the defendant, the contract is executed so far as plaintiff is concerned, and hence there is no necessity to declare specially. Lowy v. Rosengrant, 196 Ala. 337, 71 So. 439; McCormick v. Badham, 204 Ala. 2, 11, 85 So. 401; Walstrom v. Oliver-Watts Const. Co., 161 Ala. 608, 619, 50 So. 46; Carbon Hill Coal Co. v. Cunningham, supra. It should be stated further that when it is shown that the defendant breached the contract and prevented full performance by the plaintiff, the latter may maintain the common counts for the work and labor done and for the value of material furnished therein. It follows that where the plaintiff had commenced the work under a special agreement and abandoned it before completion, and without sufficient cause, he cannot recover for the work and labor performed. Carbon Hill Coal Co. v. Cunningham, supra; Hawkins v. Gilbert, 19 Ala. 54, 2 Mayfield's Digest, § 333, p. 258. And where a party, in compliance with his contract, enters upon its performance and is wrongfully forced by the other party to abandon it before completion, without fault on his part, he is entitled to recover damages for breach of the contract; if profits form a constituent element thereof, and their loss is the natural and proximate result of the breach, and such as were reasonably in the contemplation of the contracting parties, the amount of such damages, if susceptible of estimation with reasonable certainty, is recoverable. Worthington v. McGarry, 149 Ala. 251, 255, 42 So. 988; Danforth v. T. & C. R. Co., 93 Ala. 614, 11 So. 60. To the contrary, if the profits are merely speculative, conjectural, or too remote. Lowy v. Rosengrant, 196 Ala. 337, 340, 71 So. 439; C. of Ga. R. Co. v. Weaver, 194 Ala. 37, 69 So. 521; Dickerson v. Finley, 158 Ala. 149, 48 So. 548; Beck v. West, 87 Ala. 213, 6 So. 70; Brigham v. Carlisle, 78 Ala. 243, 56 Am. Rep. 28. It is declared that if the breach consists in preventing performance of the contract (without the fault of the other party whose duty it was to perform, and who is willing and able to perform), the damage consists of (1) the profits he would realize by performance of the whole contract, or (2) if no profits could be demonstrated, he could recover his reasonable expenditures and for loss of time, less the value of material on hand. Camody v. White, 206 Ala. 126, 89 So. 283; Lowy v. Rosengrant, 196 Ala. 337, 71 So. 439; Danforth v. T. & C. R. Co., 93 Ala. 614, 11 So. 60; Worthington v. Gwin, 119 Ala. 44, 24 So. 739, 43 L. R. A. 382; Jones v. Lanier, 198 Ala. 363, 73 So. 535.

Defendant's plea numbered 10, to which demurrer was sustained, avers that the demand sued on is based on a contract made between the parties hereto in July, 1921, under and by which plaintiff agreed to locate a sawmill on the "Gilliland tract" of land, and saw thereon all timber delivered by the defendant at said sawmill from said land, and the timber on the Gulledge, McCain, Thornton, and Hardy lands, "all of which timber was within, to wit, one and one-half miles of said sawmill," and for the sawing of said timber defendant was to pay plaintiff $4 for each thousand feet of lumber when the same was delivered by the defendant to the Dixie Construction Company at the Coosa river, and when it was "checked and paid for by said company." It is averred in that plea that plaintiff located the mill and began the manufacture of the lumber under the contract (as he had agreed to do) soon after the same was made, and "continued to operate under the same" until about the last of November, 1921, at which time plaintiff breached the contract and ceased the manufacture of lumber and "did not saw any more lumber under said contract"; and at the time of said breach, and continuously prior thereto (from the time the contract was made to the time it was breached), defendant had performed all of the duties and obligations imposed on him under the contract; had logged said mill, as he had agreed to do; had hauled, and was hauling and delivering, said lumber to said Coosa river to the Dixie Construction Company, as he had contracted to do, "and had paid plaintiff at said time for all the lumber sawed on said mill, which had been checked and paid for by said company" (meaning paid for by the Dixie Construction Company); and at the time of the breach of said contract, and continuously thereafter, the defendant was, and had been, ready, able, and willing to perform the contract on his part, and to do and perform all of the acts, things, and duties imposed upon him by the same, and would have done so, but for the breach thereof by plaintiff. The plea concludes with the averment that the demand sued on is for the contract price of $4 per thousand feet of lumber sawed by plaintiff, which had been paid for the Dixie Construction Company to "defendant since, and after, plaintiff breached said contract as aforesaid."

The suit being on common counts, and not maintained on express contract (Will's Gould on Pleading [6th Ed.] p. 50), was subject to the matter sought to be set up in special plea numbered 10. However, such defense sought to be pleaded in bar in this suit was held, by the ruling of the circuit court, available under the general issue. Montgomery County v. Pruett, 175 Ala. 391, 57 So. 823; Mobile County v. Linch, 198 Ala. 57, 66, 73 So. 423.

There is a distinction between the instant pleading and that in Montgomery County v. Pruett, supra. The instant case involves the contract for the manufacture of logs into lumber by Varner and Hardy, to be delivered to and checked up by the Dixie Construction Company at a point distant from the sawmill, to which the lumber was to be transported by Varner. The payment therefor was to be made by the Dixie Construction Company. Thereafter payment for the sawing, at the rate of $4 per thousand feet, was to be made by Varner to Hardy. The plea sought to set up the contract and its abandonment by Hardy. This is very different from the construction contract in Montgomery County v. Pruett, supra, which was between the immediate parties; the county stipulating for the construction of its public roads, and Pruett contracting to do this work. There was no abandonment of the work, and only a failure by Pruett as to a...