DocketNumber: 1 Div. 614.
Citation Numbers: 135 So. 183, 223 Ala. 248
Judges: THOMAS, J.
Filed Date: 5/14/1931
Status: Precedential
Modified Date: 1/11/2023
The suit was assumpsit for work, labor, and materials furnished per contract. The defense was the general issue and non est factum. The plea of misnomer was stricken, the complaint amended pursuant thereto, and pleas to amended complaint were "no assumpsit" and "material allegations * * * are untrue." The verdict was for the plaintiff. The order employed in the assignment of errors will be followed.
The secretary and treasurer of plaintiff corporation testified of the agreement for the work and material, that the writing or statement thereof was made by him from the original, and that it was true and correct; that he made the original entries for time, material, and labor; that the "original slips" thereof were lost or misplaced, and he was unable to find the same after diligent inquiry where they were ordinarily kept; that he tried for several months to make collection and without success; defendant complained that the "piston head was lying over in New Orleans * * * when as a matter of fact it was in a steamship out at sea, going to Japan or somewhere"; said some months later that the work "was condemned," and he was "trying to get it straightened out"; that the entries "from a book of original entry were true and correct * * * a copy of what the witness sent" to defendant, "and he never disputed it at all." The witness was then asked: "What is the amount he is indebted to you in?", and answered over objection, "$1,645.00 and some cents." Further testifying, witness said that he saw the condenser head before it went out, and it was done in a workmanlike manner and properly done; that "the engineer told him it was working fine, and not giving a bit of trouble."
The cases on the question of invasion of the province of the jury are collected by appellant. Birmingham Stove Range Co. v. Vanderford,
In the case of Louis Werner Sawmill Co. v. *Page 250
Vinson Bolton,
The authorities were recently collected in Sovereign Camp, W. O. W., v. Hoomes,
Having received and accepted the parts in question, and in the absence of special defense, the damages for delay and fitting or installing the parts in the engine or ship were not within the issues being tried — the indebtedness vel non for price of the work or machinery, or for the reasonable price or market value thereof. The plaintiff introduced evidence of his contract, of its reasonable market value, and it was beside the questions at issue to inquire of trouble and delay, expense and damages in changing, correcting, or installing in the ship. The delivery, acceptance, and installation of the part foreclosed these issues of facts under the general issue and nonassumpsit. The matters tending to show the incidental damages of a breach of the agreement to manufacture like the model were matters for special pleas, as recoupment or set-off. English v. Wilson,
As to damages, the several rulings on questions to which objections were reserved were without error.
The rules as to giving general affirmative instructions are well understood. McMillan v. Aiken,
There is evidence without conflict that the plaintiff did certain work, furnished material and delivered the same to the defendant; certain products which were accepted by the latter were used in the vessel for which they were constructed, and which the defendant or its executive officer, as a witness, testified had value. This is shown by the evidence of Mr. Lee Kling, who was vice president, pattern maker, and the party who made the contract for the building of the condenser head, and who had charge of the work, and by other witnesses.
The effort of the defendant was to show that the plaintiff had breached its contract, that the defendant suffered damages, and all of which was ruled out by the court, leaving nothing except the testimony showing the contract, the work, the furnishing of material, the acceptance of same, the use of same, and the reasonable market value of same.
The general charge asserted that the plaintiff was entitled to a judgment in some amount, leaving it within the discretion of the jury to fix the amount. The jury were so specifically instructed. There was no error in giving the affirmative charge. Not one witness on behalf of the plaintiff or the defendant testified to anything which had a tendency to show that the things done and delivered, the work furnished and material used in the products, were not of value, and that defendant did not use the finished products for the purposes for which they were intended. It will not be necessary to recite the evidence at length on this question. *Page 251
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.
Commonwealth Life Ins. Co. v. Reilly , 208 Ala. 313 ( 1922 )
McMillan v. Aiken , 205 Ala. 35 ( 1920 )
Standard Cooperage Co. v. Dearman , 204 Ala. 553 ( 1920 )
Dominey v. Dowling-Martin Grocery Co. , 200 Ala. 619 ( 1917 )
Clark Barker v. Eufaula Brick Works , 205 Ala. 545 ( 1921 )
Scharnagel v. Furst , 215 Ala. 528 ( 1927 )
Arnold Co. v. Gibson , 216 Ala. 314 ( 1927 )
Lysle Milling Co. v. North Alabama Grocery Co. , 201 Ala. 222 ( 1917 )
Dixie Industrial Co. v. Bank of Wetumpka , 207 Ala. 293 ( 1922 )
Fidelity Deposit Co. of Maryland v. Adkins , 222 Ala. 17 ( 1930 )
Birmingham Stove Range Co. v. Vanderford , 217 Ala. 342 ( 1928 )
Central of Georgia Ry. Co. v. Faulkner , 217 Ala. 82 ( 1927 )
Newell Contracting Co. v. Wheeler , 223 Ala. 323 ( 1931 )
Louis Werner Sawmill Co. v. Vinson Bolton , 220 Ala. 210 ( 1929 )
McCullar v. Williams , 217 Ala. 278 ( 1928 )