Tri-City Gas Co. v. Connelly Boiler Works , 8 Ala. App. 650 ( 1913 )

WALKER, P. J.

Count 3 of the complaint in this case is in the form prescribed by the Code for a complaint on a dependent covenant or agreement. — Code, § 5382, form 9. This is enough to say in support of the conclusion that that count was not subject to the demurrer interposed to it.

Counts 1 and 2 followed the same form, except that, instead of the general averment of the code form of a compliance by the plaintiff with all the provisions of the contract on its part, each contained a specific averment that the plaintiff built the boilers as agreed upon, and was ready and willing to deliver and set the same as provided in the contract, which was followed in the first count by averments to the effect that the defendant wrongfully prevented the plaintiff from completing his part of the contract, and in the second count by the averment that the defendant notified the plaintiff that it would not receive said boiler, thus wrongfully preventing the plaintiff from complying with all the provisions of said agreement. Each of these counts shows that the plaintiff did everything required of it by the contract, except the things which it was in the power of the defendant to prevent its doing, namely, delivering and setting the boilers on the defendant’s premises, and that these things the defendant did not permit it to do. These averments sufficiently showed that the plaintiff had fully complied with its obligations under the contract sued on except in so far as it had been excused or prevented from doing so by the defendant itself.— Brooklyn Life Ins. Co. v. Bledsoe, 52 Ala. 538; Davis v. Badders & Britt, 95 Ala. 348, 10 South. 422.

The second and third counts of the complaint were founded upon an instrument in writing, which was set out. The defendant’s plea 1, which was duly sworn to, contained all the averments found in the code form for a plea of non est factum. — Code, § 5383, form 33. It seems that the further averments found in that plea in denial of the execution of the instrument sued on by the individual who made oath to the plea in behalf of the defendant corporation could not have had the effect of casting on the plaintiff the burden of proving anything more than the execution of the instrument sued on by the defendant or by some one authorized to bind it (C'ode, § 3967), and that this feature of the plea, which alone distinguished it from the Code form for a plea of non est factum, did not render it subject to a demurrer which did not suggest as an objection to the plea the presence in it of the superfluous averments. However that may be, it is quite apparent that the subsequently filed pleas 3 and 4, each of which was substah-tiall'y in the code form for a plea- of non est factum, Avere not subject to tbe demurrers interposed to them. The suggestion made in the argument of the counsel for the appellee that these pleas Avere not SAVorn to, and Avere subject to the demurrers pointing out this omission, is based upon a misapprehension of the record. The record shows that each of them Avas duly SAVorn to. The defendant was entitled by sworn plea to put in issue the execution by it, or by any one having authority to bind it, of the written instrument upon which it was sought to he charged with liability. Possibly the error committed in depriving the defendant of the right to present in the manner authorized by law the issue sought to be presented by those pleas might he regarded as having been cured if it appeared from the record that in the trial of the cases the plaintiff was required to and did sustain the burden which Avould have been put upon it by a plea of non est factum. But the record before us does not make such a showing. It is true that the bill of exceptions shows that the plaintiff offered evidence tending to prove that the defendant contracted with the plaintiff as alleged in the complaint. But there was other evidence having an opposing tendency, and it does not appear that the jury considered the evidence submitted to them in the light of an instruction that it was incumbent on the plaintiff to prove the execution of the contract alleged in the complaint. It is not to be presumed that such an instruction was given when rulings of the court which the record does disclose indicate that it did not recognize the existence of the right of the defendant to cast upon the plaintiff the burden of proving the execution of the instrument sued on.

Pleas E, F, H, I, and J each sought to put in issue averments contained in the complaint. The defendant could not have been prejudiced by the action of the court in sustaining demurrers to those pleas, as the matters of defense which they sought to present were available to tlie defendant under its plea of the general issue.

There was evidence tending to prove that the defendant’s refusal to accept the boilers made by the plaintiff was justifiable on the ground that they were materially defective in construction. Whether or not under evidence which was admitted without objection the jury might have found that the defendant had waived compliance by the plaintiff with the provision of the contract as to the time for completing and delivering the boilers, though the fact of such a waiver was not within the issues presented by the pleadings, yet the plaintiff would not have been entitled to recover the value of the boilers made by it if the defendant’s refusal to accept them in the condition in which they were proposed to be delivered was because of material defects in their construction which the plaintiff wrongfully refused to remedy, and not because the work had not been done within the time specified in the contract. The jury might well have inferred from the instruction embodied in written charge 1 which was given at the instance of the plaintiff that he was entitled to recover the value of the boliers in an incomplete condition “if the defendant notified the plaintiff some time after he had commenced the construction of the boilers that it would not accept them,” even though it was found from the evidence that the giving of such notice was in consequence of a refusal by the plaintiff to remedy material faults of construction which were disclosed by the’test of the boilers which was made with a view of their delivery to the defendant. It is plain that the defendant should not be required to pay for incomplete boilers which the plaintiff refused to complete in the manner contemplated by the contract. Whether the giving of that charge constituted reversible error, or merely had such a misleading tendency as to suggest to the defendant the advisability of requesting explanatory instructions, need not be decided, as the judgment appealed from must be reversed because of the error already mentioned. To say the least of it, that charge properly could have been refused. It is not deemed necessary to mention many other rulings which have been assigned as errors. Most of the assignments of error do not merit discussion.

Reversed and remanded.