Woodrow v. Hawving

• Decision Date: 19 December 1894
• Citation: 16 So. 720,105 Ala. 240
• Parties: WOODROW v. HAWVING.
• Court: Alabama Supreme Court

16 So. 720

105 Ala. 240

WOODROW v. HAWVING.

Supreme Court of Alabama

December 19, 1894

Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Action by Robert Hawving against John Woodrow. From a judgment for plaintiff, defendant appeals. Affirmed.

This was an action to recover an amount due for work and labor done, and was brought by the appellee, Robert Hawving against the appellant, John Woodrow, doing business as the Birmingham Steam Dye Works. On the examination of the plaintiff, he testified, among other things, that, when he was employed to do dye work, his contract of employment was made with Henry Woodrow, father of the defendant, because the plaintiff could not speak English very well, and Henry Woodrow could converse with him in German; and after testifying as to his employment, and the payment of his wages from week to week, up to February, 1893, the plaintiff further testified that he demanded payment from Henry Woodrow of the amount due him, and that he told Henry Woodrow that he wanted something to show for what they owed him; that Henry Woodrow walked off a little way to where John Woodrow was standing, and, after a conversation with the latter, wrote out and gave to the plaintiff the following duebill "Due Robert Hawving $62.35. Birmingham Steam Dye Works John Woodrow." The plaintiff further testified that he did not know what connection Henry Woodrow had with the business, but that he was generally paid off by Henry Woodrow, who was continually in and about the place of business. Upon the plaintiff offering to introduce in evidence the duebill or memorandum, the defendant objected on the grounds-First, that the execution of the writing had not been sufficiently proven; second, that it was not shown that Henry Woodrow had authority to bind John Woodrow; and, third, "because it was irrelevant, for the reason that the complaint was for work and labor done, and not on a stated account." The court overruled the objection, and admitted the duebill or memorandum in evidence; and to this ruling the defendant duly excepted. The defendant also moved to exclude the testimony of the plaintiff as to his conversation with Henry Woodrow, on the ground of its irrelevancy. The court overruled this motion, and the defendant duly excepted.

John H. Miller, for appellant.

Cabaniss & Weakley and George Huddleston, for appellee.

COLEMAN J.

The appellee, Hawving, sued the appellant, Woodrow, in the justice's court, and recovered a judgment for $100. The defendant appealed to the circuit court, where the case was tried de novo by the court, without the intervention of a jury; and the court rendered judgment for the plaintiff for the amount of the judgment recovered in the justice's court, and interest thereon as damages. The rule is that when a case is tried by the court, without a jury, although the trial court may have erred in the admission of evidence, yet, if the judgment is sustained by all the legal evidence, this court will not reverse the case. The rule is different when the trial court erroneously excludes competent evidence. The complaint was in the common form, upon a quantum meruit demand, for services rendered, and not upon a special contract. The case was tried upon the pleas of payment, set-off, and recoupment. There was no evidence of payment, and, strictly speaking, none to sustain a plea of set-off. The real contest was upon the defense of recoupment for loss resulting to the defendant in the damage and injury of certain goods and clothing, by reason of the "ignorance, want of skill and knowledge," of the plaintiff as a dyer. The evidence did not show that plaintiff expressly represented to the defendant at the time of his employment, or at any time, that he was a skillful dyer; but we think the principle sound that one who undertakes under an agreement to perform certain work for another impliedly stipulates that he is qualified to do the work, and is liable for damages resulting from a breach of this implied stipulation. In this case the evidence showed that plaintiff began work for defendant as a dyer in February, 1893, and continued in his employment until April, 1894, under an agreement by which plaintiff was to be paid $16 per week, and that he was paid in full exempt for the last six or seven weeks of the services rendered.

Although a party may perform services under a special agreement, when the contract has been completed on one side, and nothing remains to be done but the payment of money, the party may maintain an action under the common counts, and introduce, in support of the complaint, evidence of a special contract of employment, as tending to show the character of the services rendered, the length of time, and also the value of the services; but the rule which authorizes a recovery on the common counts, under such circumstances, does not confine the defense to a failure of consideration, in whole or in part, or that the services were not worth the stipulated price, by reason of unskillfulness or negligence in the performance of the services, and thus defeat or reduce the recovery. The defendant may also set up a special contract of employment, aver a breach, and, if the evidence justifies it, defeat the action, or recoup the damages resulting from a breach, as might have been done if the action had been brought upon the special agreement, instead of upon a quantum meruit demand. Hunter v. Waldron, 7 Ala. 753; Roberts v. Brownrigg, 9 Ala. 106; Martin v. Everett, 11 Ala. 375; Dryer v. Lewis, 57 Ala. 551; Jones v. Deyer, 16 Ala. 221; Martin v. Hill, 42 Ala. 275; Eagan Co. v. Johnson, 82 Ala. 233, 2 So. 302.

The court found from the facts the issue for the plaintiff. The act establishing the city court of Birmingham provides that on appeal, the supreme court shall review the conclusions and judgments of the city court, "without any presumptions in favor of the rulings of the court below on the evidence, and, if there be error, shall render or reverse and remand as shall seem right." The proper construction and application of this rule is not free from difficulty. When the evidence before the trial court consists of depositions, a just application is easily made. In the case of McWilliams v. Phillips, 71 Ala. 80, this court used the following language: "There is much reluctance in appellate courts to revise the findings of fact on conflicting evidence made by primary courts. The law, however, devolves the duty, and it must be performed. The rules and principles upon which the court will proceed are settled by a long line of precedents. If the primary court is charged...