Tutwiler v. Burns

McCLELLAN, J. On former appeal in this case (not reported) it was ruled that the contract was admissible in evidence. No reason has been presented to us justifying, we think, repudiation of that holding. Several of the questions reargued are thereby eliminated from further consideration. It was alleged in count 1 of the complaint that performance by plaintiff of the contract to construct the building was prevented by the issuance of an injunction at the instance of the defendant, the owner. It was objected, by demurrer to this count, that such averment did — 391 — not show a breach, and that the maxim reading, “The act of the law does injury to no one,” applies to point the ground of the demurrer stated. We do not construe the averment as complaining of an improper use of the injunctive process, but that the office and effect of the averment was to show a breach of the contract by the appellant — a breach resulting in the prevention of the plaintiff from further performing it on his part. It (the averment) was employed to charge the defendant with an act evincing a purpose on his part, and effecting it, to prevent performance by Burns. That a contractor may breach his contract by means afforded by injunctive processes invoked by him does not, it occurs to us, relegate the injured adversary in the contract solely to an action on the injunction bond. Of course, if the defendant in the injunction suit was undertaking to recover on the bond, or to recover for maliciously procuring an injunction to issue, his action would be premature until some disposition of the injunction had been made. This, and nothing more, is the pertinent announcement in Tatum v. Morris, 19 Ala. 302, 306, 22 Cyc. p. 1061, and 1 Spelling on Ex. Belief, § 964, the citations presented in this connection for appellant. It was not contended below that another action was pending, involving in any degree the matter of the contract for the breach of which this action was brought. The demurrer to the second count, overruled by the court, asserted the objection that no breach of the contract sued on was averred therein, in that the averment that defendant refused to allow plaintiff to carry out his part of the contract is not the equivalent of an averment that defendant refused to be bound by the contract. A quotation from the count will suffice to show that the ruling of the court on the stated criticism of the count was correct. It is averred that “the defendant has — 392 — breached said agreement, in this: That he forbade the construction of the same, (the building) by said plaintiff, and refused to allow him to carry out his part of the aforesaid agreement. * * *” Previously in the count it is averred that plaintiff had already entered upon the performance of the contract by the assembling of materials and the doing of work on the lot in course of the performance of the contract. We cannot conceive how a breach of the entire contract, a refusal to be bound by it, on defendant’s part, could be more certainly alleged than appears in the count. The engagement on plaintiff’s part was to construct for defendant a described building on a lot of defendant’s, and the averment asserts that defendant forbade the plaintiff doing so. This count is squarely within the manners of breach enumerated in 9 Cyc. p. 635. Defendant could not have forbidden, more broadly, performance of the entire contract by plaintiff, and it would be wholly irrational, in the face of the averments, to interpret the count, in respect of breach, as appellant contends. As a matter of proof, we find this in defendant’s testimony: “That he (defendant) knew that said Smith had prevented plaintiff’s intestate from constructing the building and ratified his conduct in so doing.” In view of this statement from the defendant, there could be no question of plaintiff’s right to recover, provided the jury found that a valid contract was entered into between the parties. The testimony detailing what, in some particulars, Burns testified on the former trial of this case, was not within the prohibition of Code 1896; § 1794. The testimony did not relate to a “transaction with or statement by” Burns in any individual sense. Indeed, the statements attributed by the witness to Burns were made to a court, and not to the witness, or to any other, as a personal or individual matter. They were delivered in the — 393 — course of judicial investigation, looking to the decision of rights between parties, and were subject to proof, Burns being dead, by any witness possessing the general qualifications necessary to admit his testimony. The “statements” and “transactions” contemplated by the statute are those pertaining to individual intercourse and dealing, and not to such transactions with or statements by the decedent as are general in nature and as are open to public observation; the intent of the statute having its central idea in mutuality, with the view to the protection of the estate of the decedent against those pecuniarily interested in the result of the suit or proceeding. — Borum v. Bell, 132 Ala. 85, 31 South. 454. The testimony, in the regard stated, ivas properly admitted. Since it was previously ruled that the retracing in ink of the penciled figures in the alleged contract was not a material alteration thereof, and since, as said for appellant in brief, “no question as to the making of this bond is involved in this appeal,” we can see no possible injury resulting to appellant in the allowance of Carney’s testimony relating to the transactions and acts of Burns with him (witness) in and about the bond, or the retracing in ink referred to. Special charge 11, the refusal of which to defendant is made the basis of the fourteenth assignment of error, seeks to predicate a verdict for the defendant upon the failure of plaintiff to return the duplicate instrument to defendant or his agent. No reason and no authority is presented in brief in support of the assignment. It is not insisted on. The witness Creighton testified that the contract was awarded to Burns, on his bid, with the approval of both defendant and his agent; that the contract was drawn by witness, and was approved by both defendant and his agent; and that when he last saw the paper it bore d.e — 394 — fendant’s signature, was in Burns’ possession, and was unaltered, except as the figures were retraced in ink over penciling. In this state of the proof, a charge predicating a finding for defendant solely upon the intent with which the agent of defendant left the paper at Burns’ office could not be properly given. Under the circumstances, indicated by at least tendencies of the evidence, the intent of the agent might have been opposed to the evidential effect of his and associated acts and facts. Additionally, it was open to the jury to find from the testimony that the bid made by Burns was accepted by the defendant, and that the contract was awarded to Burns with defendant’s approval, and that the paper prepared by Creighton was executed by defendant, all anterior to the leaving of the paper at Burns’ office. It is inferable from the testimony that the only factor in the contract left uncompleted was the guaranty bond which, some of the proof tended to show, was furnished by Burns, and which was latterly refused by defendant’s agent because it was written by a concern other than the defendant’s agent, who also represented a bonding company. We think these considerations warranted the court in refusing special charges 5 and 8, both of which would give a controlling effect to the intention only of the defendant’s agent. There was testimony tending to show that Burns had placed materials on the lot with a view to the construction of the building. The court excluded, on motion of defendant, the testimony of one of the witnesses that Bowman, who later constructed the building for defendant under like plans to those by which Burns was alleged to have entered on the undertaking, used some or all of these materials so placed on the lot by Burns. This exclusion did not take from the possible consideration of the jury the fact, supported by some tendencies — 395 — of the testimony, that these materials were not there after the building was finished by Bowman. The special charges made the basis of assignments 18, 19, 22, and 24 sought the instruction of the jury, in substance, that there ivas “no evidence” that the defendant appropriated, or ratified the appropriation to his benefit of, the brick, lime, or lumber belonging to Burns, or of work done by him. The concurring justices are of the opinion, and so hold, that these charges were correctly refused, because it is not error for the court to refuse to instruct the jury that there is “no evidence” of a fact set forth in a special charge. — Know v. Fair, 17 Ala. 503, 509; Montgomery Ry. Co. v. Smith, 146 Ala. 326, 39 South. 757; and other authorities noted in appellee’s brief on rehearing. The status presented by the absence of proof in support of claimed elements of damages would seem to render inapplicable the sound rule stated before; but a majority of the court is of a different opinion, and hence the refusal of the special charges referred to is held not to have been erroneous. Under the issues on the trial the court properly overruled the defendant’s objections to the questions quoted in assignments 6 and 8. If the defendant appropriated or ratified the appropriation to his benefit of, the material and labor of Burns, then the value thereof were elements of recoverable damage, provided the contract and its breach by defendant was found by the jury. While the pleading of the plaintiff may have been unnecessarily extended, we are not convinced that any injury to appellant resulted therefrom, or from the discretion exercised by the court in overruling the motion to strike counts A and B of the complaint. — Code 1907, § 5322, and authorities noted thereunder. The special charge copied in assignment of error numbered 21 mentions those elements of uncertainty, or pos — 396 — sible conditions to be encountered, in general works of construction, including buildings, that may be proven as affecting the measure of profits the complaining party to the breached contract might have caused, had the contract been performed by him. — T. & C. R. R. Co. v. Danforth, 112 Ala. 80, 95, 20 South. 502. We discern no such proof in this record, and the charge was therefore abstract, and was correctly refused. The special charge copied in the twentieth assignment of error hypothesizes the establishment, to the jury’s reasonable satisfaction, of the averments of the complaint or of some count thereof; whereas the burden assumed by the plaintiff is the establishment, to the requisite degree, of the material averments of the complaint, or of some count thereof. Charge 5, treated in B. R., L. & P. Co. v. Moore, 148 Ala. 115, 42 South. 1029, is not similar to that in hand. The special charge assigned was properly refused. The judgment is affirmed. Dowdell, C. J., and Anderson, Mayfield, and Sayre, concur.