Moore v. Lea's Adm'r , 32 Ala. 375 ( 1858 )

RICE, C. J.

Tbe contract for tbe breach of wbicb tbis action was brought, is “ a contract for tbe letting out and hiring of work by tbe great, or, as it is more commonly called, job or taskwork,” — a contract to build a church, tbe employer agreeing to furnish all tbe materials, “ except tbe stone, &c., for the pillars,” wbicb tbe undertaker agreed to furnish. — Addison on Con. (edition of 1857,) 443. Tbe employer was bound to do every thing that was necessary to be done on bis part to enable the undertaker to execute bis engagement and earn tbe hire or reward, (Addison on Contracts, 446;) and as no time ivas appointed for peformance on bis part, be was bound to> perform within a reasonable time. — lb. 234. Tbe undertaker was bound to enter upon his employment without delay, and to be active, industrious, careful, and diligent in tbe performance of tbe work; to do it according to orders-given and assented to; to complete it within a reasonable-period, if no precise time bad been agreed upon for its* fulfillment; and to exercise a reasonable amount of care- and skill in its execution. — Addison on Contracts, 457,. 458. And after tbe materials wbicb the employer bad agreed to furnish were delivered under tbe contract, and put under tbe control of tbe undertaker, tbe general law of bailment for hire regulated his liabilities as to them, and be was bound to take tbe same care of them that a prudent and cautious man ordinarily takes of bis own property ; to exercise all reasonable and ordinary forethought and precaution for their protection and preservation ; and if a loss occurred from inundation, be must show that he bad taken all such precautions as are ordinarily taken by prudent men to guard against tbe mischief. — Addison on Con. 459, 461.

In tbe present case, Lea (tbe plaintiff’s intestate) was the employer, and Moore (tbe defendant) the undertaker. By tbe contract between them, Lea was to furnish all tbe materials, “except tbe stone, &c., for tbe pillars,” which Moore agreed to furnish. Moore agreed “ to have all tbe work done as soon as possible after the materials ” were furnished; and nothing was said in that contractas to the quality of the materials which Lea was to furnish. Evans was not a part)’ to that contract. The evidence tends to show, that Lea made another and different contract with Evans and another, by which the latter agreed to furnish the lumber which Lea in his contract with Moore had agreed to furnish, and that the lumber should be of good quality. Moore was not a party to that contract. It is evident that the verdict and judgment in the present suit cannot be evidence for Evans in another suit, except to prove the mere fact of their rendition, for which purpose they would be evidence for every body; and, therefore, Evans is a competent witness for the plaintiff, under section 2302 of the Code, even if it were conceded that he was interested in the event of the suit. According to that section, interest in the event “goes to his credit only,” but does not render him incompetent, “unless the verdict and judgment would be evidence for him in another suit” — that is, evidence for him to prove something beyond the mere fact of their rendition. They could not have been evidence for him here to that extent, because they could not have.been evidence against him, to that extent, had they gone contrary. — Atwood v. Wright, 29 Ala. Rep. 346; Harris v. Plant & Co., at the present term.

[2.] There was evidence tending to show, that the lumber which Evans and another had agreed with Lea to furnish was delivered by them at the place contemplated by the contract between Lea and Moore — the place where the church was to be built; and that it was delivered in the winter of 1852. The defendant having proved by Evans, on cross examination, that he (the defendant) went to the church “ about the first of April, 1853, with his work-benches and some workmen ; and that he examined the timber or lumber on the ground, and found fault with some of it, because worm-eaten; the plaintiff then offered to prove, by said witness, that he then told defendant, that he had delivered more lumber than the bill furnished called for, and to go to work at it, and if it turned out that there was not good timber enough for the job, he would furnish more, and that he should not be delayed in his work.” To the introduction of what the witness told defendant, the defendant objected, but the court permitted it to go to the jury, and he excepted.

The defendant proved by a workman, that he and defendant “went to the church about the first of April, 1853, the time spoken of by Evans, with their benches and tools, with a view of going to ivork; and that they did not do so, because defendant examined the lumber, and pronounced much of it unsuitable for the job,” &c. “ The plaintiff, in rebutting, offered to prove, that the defendant, in the spring of 1853, undertook and erected a steam saw-mill in the neighborhood of Whitesburg, (the place where the church was to be built,) in which he was himself interested; but there was no further proof as to when he commenced or finished it, except that it was finished in the summer of 1853. The defendant objected to the testimony, but the court admitted it, and he excepted.”

The plaintiff also offered to prove, “ that while building said mill, and about the month of March, the defendant told witness, that as soon as he finished it, be would do the ivork on the church ; to which the defendant objected, but the court admitted it, and he excepted.”

The evidence embraced by these three exceptions, was admissible, at least, to repel the following inference, which might otherwise have been drawn from the defendant’s evidence, to-wit, that the defendant ivas really ready and willing, at the time he and his workmen went to the church, to do the work on it, and that he would then have begun the work but for the uusuitableness of the lumber which had been furnished for the purpose. The plaintiff had the right to show, that the defendant was really not ready and willing; that he did not goto the church, with his workmen and benches, for the purpose of going to work there; that the benches and tools and workmen he had with him there, were really intended for use in erecting the steam saw-mill in the neighborhood; and that the pretense of the uusuitableness of the lumber, and of his readiness to go to work there, was a false pretense,, designed to cover np his foregone determination not to do' the work on the church before he had finished the steam saw-mill, if he did it at all. And as the plaintiff had this right, we cannot say that the evidence embraced by the three exceptions now under consideration, was irrelevant or illegal, or that it was improperly admitted. — Malhuish v. Collier, 15 Ad. & El. (N. S.) 878; Rutherford v. McIvor, 21 Ala. 750; Watkins v. Gaston, 17 Ala. 665.

[3.] The opinion of Evans, who was the owner of a saw-mill in the neighborhood, and gave it his personal attention, and was a lumber-dealer, as to the quality of the lumber delivered by him for the job in controversy, was certainly good in part. The objection was to the whole of his opinion. As part of it, as offered, was admissible, there was no error in overrulingthe objection.

[4.J All the evidence is set forth in the bill of exceptions. As to the letter of Lea read in evidence by defendant, the court charged the jury, that they were not to regard the letter as establishing a new contract, but for the sole purpose of showing that the defendant was constituted his agent to pass upon the suitableness of the lumber furnished. To that charge the defendant excepted. The letter was written on the first of January, 1853. It does not appear that it was replied to, or acted upon by the defendant. It was written by the employer to the undertaker, not to relieve him from his obligation to take care of the lumber and do the work promptly, but rather to quicken his diligence. If any part of it can be construed into an admission of the unsuitableness of any part of the lumber, the admission cannot possibly go beyond “ the columns for the front; ” and it is very clear that the unsuitableness of those columns could not, upon the evidence in this case, relieve the defendant from liability. But we think, the letter, fairly construed, does not amount even to an admission of the unsuitableness of those columns; for, after speaking of them, he adds, “they may no.t be as bad as I imagine,” &c. The letter directed the attention of the undertaker particularly to them, and authorized him, as agent for Lea, to pass upon tbeir suitableness, as well as upon tbe suitableness of the other portions of .the lumber. But the agency created by the letter was not of such a character as to authorize the defendant, sustaining as he did the double relation of agent and undertaker, to create an excuse for his nonperformance and neglect of duty as undertaker, by failing as agent to give notice to his principal and employer, within a reasonable time, that he had discovered or determined that the lumber was unsuitable. And upon that ground, and in view of the whole evidence, and especially of the statement in the bill of exceptions, that the defendant never did enter upon the work, but suffered the lumber to lie where it was delivered until the spring of 1854, and that there was no proof that Lea was ever informed that defendant objected to any portion of the lumber, — we are satisfied, that the defendant was not injured by the charge or any ruling of the court in relation to the letter. In other words, the court allowed the defendant all the benefit he was entitled to from it in this 'suit.

"We think it clear that, upon the evidence, the court was right in charging that, ’“in order for the defective and unsuitable condition of the materials to be an excuse to the defendant for not performing his contract, he must show that he gave the plaintiff notice thereof within a reasonable time after the discovery of the quality of the lumber.” — Story on Agency, 4th edition, § 208, and cases cited in note 1, on page 259.

The bill of exceptions states, that all the other charges excepted to, numbered from one to five inclusive, were given “in regard to the measure of damages.” If that statement is not itself a full answer to the objection made to the charge numbered two, that it assumes that the plaintiff had complied with the contract on his pari, the following is a satisfactory answer to that objection, to-wit, that even if that charge makes such assumption, it did not injure the defendant, for the conclusion of that very charge was, that upon the assumptions or facts therein stated, “ the defendant was not responsible ” for the lumber. "We deem it unnecessary to go into any further argument or detail.

We have carefully examined the ingenious arguments of the learned counsel for the appellant, upon the several points made for reversal; and our conclusion is, that there is no reversible error in any of the rulings or charges of the court excepted to by appellant.

Judgment affirmed.