Walstrom v. Oliver-Watts Const. Co.

• Decision Date: 10 June 1909
• Citation: 161 Ala. 608,50 So. 46
• Parties: WALSTROM v. OLIVER-WATTS CONST. CO.
• Court: Alabama Supreme Court

50 So. 46

161 Ala. 608

WALSTROM v. OLIVER-WATTS CONST. CO.

Supreme Court of Alabama

June 10, 1909

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by the Oliver-Watts Construction Company against P. F Walstrom. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

M. M Ullman, for appellant.

Robert N. Bell, for appellee.

MAYFIELD J.

This was an action upon an express contract, to which were joined the common counts. The complaint contained four counts, three of which declared upon the expressed contract to construct the walls of a house, and the other upon the common counts and sought to recover a balance due; there having been a part payment, and the defendant having occupied and used the house. The contract was in words and figures as follows:

"August 4, 1906.

"Mr. Sidney Ullman, City--Dear Sir: We will make and deliver blocks as per our agreement on lot opposite Glen Iris gate for 23 cents per block. We will also make and deliver special designs of water tables and sills, as per detail, for 10 cents per lineal foot above our previous bid. The blocks are to be plain and faced with a three to one mixture. Will also lay the block up, beginning at water table, for 30 cents per square foot, over all, counting water table in measurement. A cost of one cent per superficial foot will be added for pointing these blocks about our previous bid. Hoping to be favored with this valued order, we remain, very truly.

"An additional charge of (1c) one cent is to be allowed for projected corner blocks.

"Oliver-Watts Const. Co.,

"By W. G. Oliver.

"August 6, 1906.

"The above bid is accepted, except in matter of water table, which is to be stock pattern, at regular price of balance of blocks. It is understood that the price of 30c per square foot includes all work except pointing up and price of sills.

"For P. F. Walstrom,

"By Sidney M. Ullman, Architect."

To the complaint defendant filed six pleas, which set up a breach of the contract by plaintiff in furnishing bad blocks and in failure to properly construct. Three of these pleas may be classed as pleas of recoupment. A demurrer was sustained to the first plea, and overruled as to the other five. To these five pleas plaintiff filed six replications, setting up acceptance of work, waiver of plaintiff's breach, etc. To these replications defendant filed three rejoinders, one general and two special, setting up a conditional acceptance under promise that plaintiff would make good the defects.

It is sufficient to say that the evidence of each party tended to prove the averments of each of the respective pleadings. At common law this would have been a very short and simple issue, though the pleadings are copious; that is, the one (and that only) raised by the rejoinders. But under our statute, both parties being allowed to plead double, the pleadings are very lengthy and often complicated, involving many issues, most of which are frequently immaterial. The present record is a splendid object lesson to illustrate the evils of double pleading. Here the defendant denies the complaint, then confesses it and avoids it. The plaintiff in turn denies the pleas, and confesses and avoids. Defendant, asserting the right of a woman determined on having the last say, rejoins by denying the replications, then admits and avoids. The plaintiff then asserts his right of opening and closing the pleadings, as well as the argument, so he rebuts, by denying the rejoinder, then admitting it and avoiding it. And thus the game of "tag" goes on, with each trying to trip the other, until the whole gamut of pleadings is run, or the nomenclature of the ancient pleader, the ingenuity of the modern, or the patience of the trial court is exhausted. What is said above is not intended by the writer as a criticism of the conduct of this particular trial, but to illustrate the evils of the statutory system of pleadings.

It is both evidently and concededly true that the bone of contention in the lower court, as in this, is the construction of the contract upon which the action is brought. Most all of the other questions depend more or less upon a proper decision of this question. The appellant (defendant below) contends that the contract is one to build the walls of a house, and must, therefore, be treated as a builder's contract. The appellee (plaintiff below) contends that it is a contract "whereby the appellee sold personal property, namely, cement block, to appellant, and agreed to put them up under the direction of appellant's architect," and hence that the law governing sales of chattels applies as to breaches of contract, measure of damages, etc. In this contention we agree with the appellant as to the character of the contract, but not to the full extent to which some of his argument goes, as to the necessary duties of both parties, and as to the measure of damages; nor do we agree with appellee as to its contention as to these matters.

The contract speaks for itself, and we think the language is too plain for argument; that it cannot be classed as a contract for the sale of a mere chattel. It is true that a part of it includes necessarily the sale or furnishing of concrete block, the building material, by the appellee for the appellant; but it also contemplates the making of the blocks themselves of a particular kind of material, and the construction of the walls of appellant's house out of such block. So it is as strictly and certainly a builder's contract as if appellee had contracted to build the whole house and furnish the materials according to given stipulations; but, of course, the liability of the contractor, who undertakes to build a part only of a structure, is not, in all things and to the full extent, that of a contractor who undertakes to build the whole. The liability of each is measured and limited by the obligations and duties either expressed in or implied from the contract of each particular case. The nature and character of the contract are the same in each case. A contract to build a house, by which the builder is to furnish the material, whether it be wood, brick, or stone, or other materials specified, would certainly not be classed as one for the sale of chattels; nor do we think that the limitation of a contract to the building of the walls out of concrete blocks, and the fact that the price is fixed at so much per block and so much for placing each in the wall, convert or change it from a builder's contract to one for the sale of a chattel.

The trial court, at the request of the plaintiff (appellee here), gave each of the following charges:

"I charge you that the defendant is not entitled to recover in this case, if you believe all the evidence."

"If the defendant accepted the work, or moved into the house and used the building, the defendant would be liable for the actual value of the work."

"The defendant is bound to pay the reasonable value of the work, if he accepted it and used it, whether it was in conformity to the contract or not."

"I charge you that if the plaintiff did the work on certain walls of the defendant's house, but the work was not such work as had been agreed on in the contract, then the defendant is bound to pay only the reasonable value of such work, if it was used and accepted by him, unless it appears that the work had been changed by direction of himself or agent."

"I charge you that if, when the plaintiff finished the cement block walls, as they did finish them, whether it was in accordance with their contract or not, the defendant had the right to have the walls in the condition he contracted for them, and to spend money, if necessary, to put them in that condition; and if you find from all the evidence that defendant accepted the walls and used them, and made no expenditures to have them placed in the condition contracted for, then the defendant must pay the reasonable value of the walls when he accepted them."

The trial court refused to give, at the written request of the defendant, the following charge:

"I charge you, gentlemen of the jury, that a mere naked occupancy or use of a building erected on the land of the owner does not itself amount to an acceptance of the work as done in compliance with the contract, unless the possession and use be coupled with some act or some language from which acceptance or acquiescence may be reasonably inferred. The owner is not bound to remove the building or abstain from using it."

The ruling and action of the court as to some of these charges if not as to...