Sloss Iron & Steel Co. v. Macon County , 111 Ala. 554 ( 1895 )

HEAD J.

The. hire-money agreed to be paid by the' appellant, was, by the contracts, payable in quarterly instalments. Failure to pay an instalment was'of itself a distinct breach of the contract. ' There should, therefore, be separate assignments of the several breaches, though all may be in the same count of the complaint. ■ The demurrer upon this point should have been sustained. All objections to'the validity of the contracts declared on being waived by counsel, the complaint was in other respects sufficient.

The objection to the introduction of the convict record book was waived by the subsequent agreement of the parties.

It did not sufficiently appear that Henley was officially authorized to certify to the classification of the convicts, and his certificate ought not to have been received, in evidence. It should be made to appear that he was the legal custodian of the records of the proceedings of the Board of Inspectors.

The quarterly reports and statements of the defendant rendered to the county treasurer and received by him, or which came to his knowledge and recognition and were acted on by him, though rendered to the judge of probate or clerk of the circuit'court, were admissible in evidence under the 3d plea, and under the general plea of payment.

The plaintiff sued upon the contracts entered into by it with the defendants. Its rights are, therefore, to be measured by the terms of those contracts. It matters not how far the probate judge, in making the contracts, may have departed from the requirements of the. statute; if there was such departure, the county seeking to enforce them, cannot reject any of their terms. It cannot claim under and against the contracts. By these contracts, the defendant company hired al1 the convicts for the times specified, and agreed to pay in advance on delivery of the convicts] respectively, the hires for such portions of the terms of sentence as were imposed for costs,and the balance quarterly; and it was stipulated that for said advance payments, credits should be allowed the company, on the next, or if need be, any subsequent settlement. Under this arrangement, it was the duty of the company to make the advance payments,and to make quarterly settlements with the county treasurer, charging itself with all hires accrúed, and crediting itself, upon the gross amount of hires accrued, with the amounts advanced, and if there was a balance due to the county to pay the same. If the balance was due. ■ the company it should be credited therewith on the next settlement, and so on, until final settlement upon the termination of the contract. The oral instructions of the court, on this subject,were opposed to this view, and were erroneous, as were also the refusals to give charges six and seven requested by the defendants.

The abortive effort of the witness, Hurt, to have an interview with the president or vice-president of the defendant company was not relevant or material and should not have been admitted.

Reversed and remanded.