Henderson-Boyd Lumber Co. v. Cook , 149 Ala. 226 ( 1906 )

SIMPSON, J. —

This'was an action brought by the appellee (plaintiff) against the appellant (defendant); the complaint containing only common counts on account and for work and labor done and materials furnished. According to the testimony of the plaintiff, he entered into the written contract set out, but, when he appeared at the appointed place on the day on Avliich he Avas to begin work, he found that he did not have men enough to do the work, and requested the general manager of the defendant “to work his hands and pay them until he could get men enough to start on the contract,” and about three or four weeks, .afterwards “he and the defendant * * * had an agreement by Avhich the defendant agreed to take part of the work and do it, agreeing to take up and relay the track of the railroad, which the defendant proceeded to do, and the plaintiff to- do the surfacing of the same.” And under this agreement the plaintiff continued to Avork until he quit in July, 1905. He testified that it was subsequently agreed that he was to have $127.50 per mile for the surfacing; that he surfaced 9 3-5 miles, and performed other Avork and furnished cross-ties, making the total amount of $2,-408.63, to Avhich he Avas entitled, on which Ire has been paid $1,919.71, leaving a balance due of $488.92.'

It will be observed that the plaintiff’s testimony does not claim, that the original contract Avas even abrogated, or substituted by a new contract, but was only modified in one particular, to-wit: In place of “taking up trade, * * * laying it, and surfacing,” and receiving $350, per mile, the plaintiff ivas simply to surface it and receive therefor $127.50 per mile. This does not differ materially from the defendant’s testimony in regard to the transaction, and it is admitted that the work was not completed. The contract provided that plaintiff was to be paid 12 1-2 cents per yard for new grading, and plaintiff claims that he quit work because he was doing some other grading, and defendant ivas not willing to allow him more than 12 1-2 cents per yard, and that old grading is more expensive than the new grading; Avhile the defendant claimed that old grading Avas much easier than new grading, and that it was really included in the “surfacing” which plaintiff was to do. Whichever contention may be correct on that point, plaintiff’s remedy Avas not to abandon the contract. Plaintiff admitted that he had not completed the work called for in the original contract. The “old grading” was either included in the contract, or it Avas not. If it Avas, the plaintiff should have gone on with the work; if it was not, and it became necessary to do- it, in order to complete the Avork contracted for, the plaintiff, on the completion of the work, Avould be entitled to additional compensation for Avhatever that work Avas reasonably worth. Or, if he did not wish to perform it himself, and his Avork of surfacing could not be done until said grading Avas done, he might demand of the defendant to have it done in order that he might go on Avith the surfacing.

It was legitimate to prove, by those acquainted with the doing of that class of work, Avhat the Avord “surfacing” meant, and whether it included such grading as Avas necessary in this case; and it aauis proper, also, to prove Avhat Avas the custom in regard to the construction companies doing that class of work, and what the cus? toniary charges were for doing it, if additional charge Avas permitted. The evidence sought to be introduced to establish the custom was at least “some proof conducing to- shoAV such custom,” and Avkether it Avas sufficient or not Avas a matter for the consideration of the jury, under the instructions of the court. Hence it was properly admitted. — Steele v. McTyer’s Adm’r, 31 Ala. 667, 676, 70 Am. Dec. 516; 12 Cyc. p. 1102; Haas v. Hudmon, 83 Ala. 174, 176, 3 South. 302.

The terms of the contract show conclusively that the $50, which was to be retained by the defendant, was a penalty “to guaranty completion of the work, and not liquidated damages. — McPherson v. Roberts, 82 Ala. 459, 462, 2 South. 333; Keeble v. Keeble, 85 Ala. 552, 5 South. 149. A substantial part of the work having been performed, and accepted, the plaintiff was entitled to recover therefor on a quantum meruit, -but defendant would be entitled to retain so much of the 50 per mile as would equal the amount of damage resulting to it from the failure of the plaintiff to complete the work. No proof was made of any such damage.

Plaintiff testified to the amount of work done and the reasonable value thereof, which was not controverted, and defendant’s own statement, in evidence, shows an indebtedness to the plaintiff, “leaving out of account the $50' per mile which defendant has the right to retain.” Hence there was no error in the giving of the charges requested by the plaintiff, nor in refusing the charges requested by the defendant.

The judgment of the court is affirmed.

Tyson, C. J., and Haralson and Denson, JJ., concur.