Reese Funeral Home v. KENNEDY ELECTRIC CO., INC.

370 So. 2d 1030 (1979)

REESE FUNERAL HOME
v.
KENNEDY ELECTRIC COMPANY, INC.

Civ. 1604.

Court of Civil Appeals of Alabama.

May 2, 1979.

Michael A. Figures, Mobile, for appellant.

Horace Moon, Jr., Mobile, for appellee.

HOLMES, Judge.

The plaintiff sued defendant for $3,850 for work performed under a construction contract. After an ore tenus hearing, the learned trial judge entered a judgment for the plaintiff in the amount of $3,050. Defendant appeals.

The dispositive issue on appeal is whether there is sufficient evidence in the record to support the judgment of the trial court. We find that there is and affirm.

The record reveals the following: Plaintiff entered into an oral contract with defendant to install electrical wiring. The full contract price was $9,000. A dispute arose concerning whether the contract required plaintiff to install an exit lighting system and a door chime signal system. Plaintiff never installed these two systems and left the job after completing all the work which plaintiff contended he was obligated to perform. The defendant withheld $3,850 for the failure to perform the contested work. Plaintiff brought this action to recover the withheld amount.

At the outset, we note that the parties stipulated in open court that there were only two issues for the trial court's consideration: 1) whether plaintiff was obligated under the construction contract to install the exit light and chime system; and if so, 2) what was a reasonable value for that work, to be allowed as an offset against the contract price.

The law in Alabama is that parties may agree to try their case on any theory they choose and agreements or stipulations fixing the issue are binding. See Hilfer v. Hilfer, 53 Ala.App. 549, 302 So. 2d 237 (1974); Rule 47 ARAP.

It is clear to this court that the trial court found that the plaintiff was obligated under the contract to perform the disputed work and that approximately $800 was a reasonable value for the unperformed work.

Keeping in mind the stipulation and the resulting issues to be resolved, the only determination for this court is whether there is evidence to support the trial court.

We do not deem it necessary or prudent to set out the evidence supporting the trial court. Suffice it to say the record reveals ample evidence supporting the trial court's conclusion. In fact, the defendant, on appeal, does not seriously contest that there is evidence to support these conclusions.

Defendant's contention through able counsel is that the trial court could not as a matter of law find that plaintiff was required to do the disputed work and still be entitled to an award. As noted above, in view of the stipulation and the rule of law as enumerated in Hilfer, supra, we do not in this instance agree with defendant. Put another way, the parties agreed as to the issues to be determined by the trial court. The trial court determined these issues. There is evidence to support the trial court's conclusion.

The case is due to be affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.