Baker v. Green

SAMFORD, J. [1] Count 3 of the complaint claimed for tire breach of a contract entered into between one Young and defendants, wherein Young agreed to furnish one expert aviator, with one areoplane, to make flights on the fair grounds in Cherokee county on October 24, 25, and 26, and the defendants agreeing to pay'to the aviator making the flights the amounts stipulated. It ' was further stipulated in the contract that the aviator should be “Bruner in looping flights.” There were other stipulations in the contract not necessary here to mention. It was alleged in the complaint that the defendants accepted plaintiff as a substitute for Bruner,, and that as such substitute he performed the contract as modified. By the terms of the contract set out in the complaint the aviator is not only authorized to receive the amounts to be due under the contract, but is shown to be the real party in interest, and therefore action on the contract was properly brought in his name. Code 1907, § 2489. The demurrers to count 3 were properly overruled. [2, 3] The objections to evidence made the basis of the second assignment of error are not well taken. Letters and documents relating to the contract sued on and preliminary to its consummation, passing between the parties, are relevant and material to the issues involved. McGowin Lumber & Export Co. v. Camp Lumber Co., 77 South. 433. 1 The contract sued on in this case is not governed by the law merchant relative to commercial paper. The indorsement on the contract, addressed to Joe Baker: “Pay amount inclosed contract to Johnny Green, aviator, who is substituted for Bruner on account of accident and inability to reach Center,” and signed “F. E. Young,” and the effect of substituting plaintiff for Bruner, were subject to the acceptance of the defendant, and, when so accepted, the rights of Bruner under the contract were transferred to plaintiff, and plaintiff became the party entitled to maintain the suit for a bre'ach under the terms of the contract itself. Young was not authorized to receive payment for services .to be rendered under the contract, but it was expressly agreed that payment should, be made to the aviator. [4, 5] As has already been, seen, telegrams relating to contracts preliminary to their making are pertinent and material, and likewise telegrams and communications' passing between the parties relative to a modification are also admissible. McGowin Lumber & Export Co. v. Camp, etc., supra. The original of the letter from Young having been offered by appellants rendered harmless the error admitting its copy. [6, 7] The objection made the basis of assignment No. 6 is not well taken.. There is no plea of fraud in this case, and, if there had been, the question called for the conclusion of the witness. Besides, the defendant did not make known to the court what he expected the answer of the witness to be. In such cases the trial court will not be put in error for sustaining an objection to a question, unless the question itself discloses to the court what is expected by the answer. *293 [8] The seventh and eighth assignments of error are based upon the ruling of the court in sustaining objections to the question (asked each defendant, “Did he perform his contract?” This question clearly called for a conclusion. In fact, ,it was the very question then being submitted to the jury for its determination. [9] There was a count in the complaint for services performed, for which recovery might be had, independently of the original contract. Hence it was competent to prove by plaintiff the value of services rendered. The objection to the ruling of the court made the basis of the’ninth assignment is not well taken. [10,11] The tenth and eleventh assignments are based upon the court’s refusal to allow defendants to testify to the reasonable value of the services of plaintiff. They were not shown to have any knowledge of the value of such services, and besides the questions asked were, not what were the value of the services rendered, but what were they worth to defendants? The rulings of the court were obviously without error. [12,13] The complaint included the common counts, as well as a count on the special contract. Under the common counts the plaintiff might recover the amount due on' the express contract, if the express contract hacl been fully performed, and nothing remained but the payment of the amount due defendant or for the reasonable value of the services rendered, provided such services were rendered at the request-.-of the defendants, aside from the express contract declared on. 2 Mayfield’s Digest, p. 258, § 833. There was evidence tending to sustain each of these theories, and hence the general affirmative charge was properly refused. [14] The basis of the thirteenth assignment of error is the refusal of the court to give charge 2. This charge is fully covered by a charge given at the request of the defendants and in the general charge of the court. [15,16] The fifteenth assignment is based upon the court’s refusál to give at the request of the jury the general charge as to count 3 of the complaint. The express contract proved in this case by the evidence of plaintiff was a modification of the contract declared on, to such an extent as to constitute a variance entitling defendants to the general charge on this count. Charge 3 should have been given as requested. Prestwood v. Eldridge, 119 Ala. 72, 24 South, 729. But, as has been seen, if the modified contract was established to the satisfaction of the jury, and nothing remained of its performance but the payment of the money due, the plaintiff could recover under the common counts, and the failure to give charge 3 as requested was without injury to the defendants. The motion for a new trial was properly overruled. We find no error in the record. Let the judgment be affirmed. Affirmed. Footnotes [1] 16 Ala. App. 283.