Higgins Mfg. Co. v. Pearson , 146 Ala. 528 ( 1906 )

TYSON, J.

On the 25th day of January, 1901, plaintiff and defendant in the court below entered into a contract by AAdiich the plaintiff Avas to furnish the defendant Avitb certain AA’ire doors and screens, all to be fitted by plaintiff in the house of defendant by April 1, 1901. Payment Avas to be made “on satisfactory completion of the work.” It is claimed by the plaintiff that the contract was completed by it in the. time named, with the exception of certain door checks Avliich had not been forAvarded, and that thereafter it attempted to supply the door checks, but the defendant Avould not permit them to be fitted, demanding that all of the material supplied and installed by the plaintiff should be removed. The complaint contained several counts upon the contract and the common counts. Demurrers Avere interposed, and the cause was tried upon- the common counts A\ritliout a jury. Judgment was rendered for the defendant, .and from such judgment this appeal was taken.

The satisfaction of the defendant with the work required by the contract as a condition precedent to payment related to the manner of the execution of the contract by the plaintiff, and not to his satisfaction with his own selection. In such case “the party cannot capriciously refuse to accept the work. He must be in good faith dissatisfied. He cannot avoid liability by merely alleging that he is dissatisfied. He is bound to be satisfied when he has no reason to be dissatisfied.”— Electric Lighting Co. of Mobile v. Elder, 115 Ala. 153, 21 South. 938.

It is unnecessary to consider whether the defendant was satisfied with the work, for the reason that the weight of the testimony shows that the plaintiff did not perform its contract. It did not put in the door, checks called “Laramie checks,” by the time stated for the completion of the contract, and the defendant testified that he was told by the workmen, whom the plaintiff sent to install them, that they were not Laramie checks. This workman, according to plaintiff’s testimony, “was a skilled workman, and had been for many years, in the matter of putting in fixtures and screens and doors such as were furnished by plaintiff.” Again, the contract provided that the hardware should be bronzed, and also for bronze wire screens. One of the witnesses of the defendant, who had been for years in the hardware business, testified that he had cut some of the wires in the screens and found them to be. steel or iron wires, and that they were merely “bronzed;” that bronze wire costs about five times as much as the “bronzed.” He further testified that one of the doorknobs shown to him furnished by the plaintiff was “bronzed.” The testimony offered by the plaintiff to show the quality of the articles furnished under the contract was that of the agent making the sale to the defendant, who is not shown to have had any other connection with the contract, and whose testimony was a mere general statement that the articles furnished conformed to the contract, and that of the secretary of the plaintiff company, who testified that he had charge of the office and clerical force of the plaintiff, and'the chief clerk in its screen department, whose duties, as testified by him, had nothing to do with the manufacture or purchase of the articles furnished by plaintiff. This testimony we think insufficient to overcome the positive testimony for the.defendant as to the inferior quality of the articles furnished under the contract. As plaintiff failed to prove its performance of. the contract, it cannot recover in an action thereon.

Nothing, however, is more common, when there has been no abandonment of the work without cause, than to permit a recovery upon an implied contract to pay the value of the labor and material furnished under a special contract, although it may not have amounted to performance; and this is always the rule when the defendant has accepted the work, either expressly or impliedly by its use and enjoyment. — Davis v. Badders, 95 Ala. 348, 10 South. 422. The doctrine, however, rests upon such acceptance. In this case, the inference of acceptance which might otherwise be made from use and enjoyment by the defendant, permitting recovery under the common counts, is negatived by the fact that the defendant repeatedly requested the plaintiff “to send and take the screens out.” Plaintiff’s contract was not merely to furnish the screens, but to fit them in the defendant’s house. It was, therefore, plaintiff’s duty to remove them, if not accepted; and the use thereof by the defendant necessarily consequent upon plaintiff’s failure to remove them after rejection, and notice thereof could not constitute an acceptance. The defendant was not required to go to the expense of removing them to prevent acceptance. His notice to plaintiff to remove them was sufficient to prevent the inference of acceptance.

As the plaintiff was not entitled to recover it is unnecessary to specialty consider other assignments of errors; for, if error, they were without injury.

Affirmed.

Weakley, O. J., and Simpson and Anderson, JJ., concur.