George v. Roberts , 186 Ala. 521 ( 1914 )

McCLELLAN, J. —

This action, by appellee, the contractor, against appellant; the owner, was stated in seven common counts and a special count, the eighth, declaring upon the breach of a builder’s contract. The court gave the affirmative charge for the defendant on all the counts except 1 and 6.

The defendant presented six special pleas, besides the general issue. All the special pleas were stricken on demurrer, upon the sole ground the judgment entry recites that the matter thereof could be adduced under the general issue pleaded. This was error. With the exception of special plea 4 (payment) and. special plea 7, these several special pleas set up matters necessary to be specially pleaded as against the two counts, 1 and 6.

Plea 3 asserted a set-off, or rather damages by way of recoupment.—Marlowe v. Rogers, 102 Ala. 510, 14 South. 790. Plea 5 set up a provision of the contract whereby a certificate of the architect was made a necessary condition of payment thereunder. See 6 Cyc. p. 93. Pleas 2 and 6 invoked a provision of the contract with respect to “differences,” constituting the architect the arbiter in the premises. See Holmes v. Richet, 56 Cal. 307, 38 Am. Rep. 54; Campbell v. American Co., 1 MacArthur (D. C.) 246, 20 Am. Rep. 591; Shriner v. Craft, 166 Ala. 146, 51 South. 884, 28 L. R. A. (N. S.) 450, 139 Am. St. Rep. 19. The defendant offered no evidence. We cannot, therefore, consider whether the erroneous striking of the pleas on the grounds stated was without injury to him.

The sum of $10 per day, stipulated in this contract for delay in completion of the building beyond a day fixed by the contract, was not a penalty.—Stratton v. Fike, 166 Ala. 203, 51 South. 874; Fike v. Stratton, 174 Ala. 541, 56 South. 829. The fact that the building involved in the cited cases was located in a city, and that here in question is located in a town of less population, does not suffice to render inapt the authority of the cited cases on this point.

Where, as here, an executory contract is not' of the class necessary to be reduced to writing, the parties may add to, alter, or modify the written contract by a parol agreement, without any new or independent consideration.—6 Mayf. Dig. p. 181, collating some of the more recent authorities.

The judgment is reversed, and the cause is remanded.

Reversed and remanded.

All the Justices concur.