Fleming v. Lunsford

McOLELLAN, J. This suit was instituted against appellants by appellees, and sought, as “original contractors,” to recover a sum of money alleged to be due appellees on account of work done and materials furnished in the construction of a building, to be used as an infirmary, in Enterprise. The pleading was in short by consent, with leave to give in evidence “all testimony that might he legally introduced if the parties had filed special pleadings.” All pleas were withdrawn under this arrangement. All of the errors assigned, save two, complain of rulings on the admission and rejection of evidence. The difficulty of dealing with such assignments where the issues, below' "those made by the complaint, are not specifically defined, is apparent. There is a. sense of uncertainty in considering in review1" grounds of complaint against rulings made where the issues are undefined. The practice of pleading in short by consent is time-honored, and no reflection upon it is intended; but the status giving rise to matters assigned as error is-always desired to be fully known wdien the action below is assigned. < Gathered from the evidence, these seem to he the points of controversy, or rather the status out of which they have arisen: The plaintiff’s claim was for work and materials done and furnished by them, not includ [544] ed or embraced in the contract, for the building of the structure for defendants. This sum was to be arrived at by deducting from the value of this work and materials the sum or value of work and materials omitted in consequence of agreement of the parties, or resulting from alterations of the plans, etc., which the contract anticipated in provision therefor. The plaintiffs litigated their rights upon this idea, and also upon the theory that, in this action, the sum otherwise demandable by them could be tolled, if not absorbed, by deduction of the damages accruing to defendants because of the failure, unexcused, of the plaintiffs to perform the contract in the particulars not altered by mutual agreement or acquiescence of the parties. True, there is some indicia of a purpose by plaintiffs to refute any idea of willingness to submit plaintiffs’ recovery to the influence of the last stated theory; but, notwithstanding, that appears to have been the general trend of the trial, as that is indicated by both the parties litigant. We express no opinion upon the question of the propriety vel non of the course so mutually pursued. It is not a matter of inquiry here, in the light of the acts of the parties in this connection on the trial. On this state of evidence-made issues we review the rulings of the court below. The contract called for eighteen-inch excavations for foundations, whereas not more than 6-inch excavations were made. Lunsford, one of the plaintiffs, was asked, when testifying, “Why were the excavations only 6 inches, instead of 18 inches?” The court properly allowed the question. If nothing more appeared in the bill, the question was immediately capable of eliciting a response within the contract provisions for alterations by agreement of the parties. When the answer came it tended to show that an 18-inch excavation would have offered [545] a less sound foundation than one of 6 inches, and also that one of the defendants stood by and saw without objection this deviation from the letter of the contract. It was at least open to the jury to find from the answer that the defendants acquiesced in the change of foundation depth. Hence assignments 1 and 2 are without merit. Pippin, defendants’ witness, was asked, on his examination in chief, this question: “Didn’t Lunsford, one of the plaintiffs, refuse to pay you in full for your services upon the ground that it was not first-class work?’’ The bill recites that objection (stating no ground) was made and the question was disallowed by the court. The question Avas leading, and we ascribe the action of the court to that as a sufficient reason to avoid error. On the issues made as stated, it is evident’ that proof of the market value of the building was properly admitted, since for the damages claimed by defendant, in the nature of counterclaim, the measure of the damages, ordinarily, is the difference in value of the building constructed or work done and that stipulated for in the contract. — 6 Cyc. p. 113. Accordingly assignments 4, 5, and 6 cannot be sustained. Lockwood was sIioavu to be the architect of the building, and the statement of Lockwood, sought to be drawn from the witness Leat-li, was -uttered, according to some of the evidence, Avhile Lockwood was inspecting the building with a vierv to advising defendants, as their representative, whether the building had been constructed according to the agreement, of the parties. He Avas the agent of the defendants on the occasion, was then engaged in the particular service for which he Avas employed, and his declarations so made were admissible and binding on his principals. — 5 May. Dig. p. 549, subhead 5T1. Assignments 7 and 8 were without merit. [546] Lockwood, whose testimony was taken by deposition, was asked by defendants the difference in value between the work and materials in the “operating room” as done and that required by the plans and specifications. In response to this question the witness said, among other things, that “the entire operating room was worthless, so far as serving his purpose was concerned.” This feature of the answer was stricken on plaintiffs’ motion. It ivas, obviously, not responsive to the question — had reference to a matter entirely outside of it. The part stricken was properly so treated. Nor was there error in striking, in part, the answer mentioned in the tenth assignment. It was not responsive to the question. The question called for a comparison of value along the line of the interrogatory before stated, except as that difference related to the entire building. The answer was descriptive of the materials used and work done, hut did not assume to state the value, the only matter asked for. According to the insistence of counsel for appellants, charges 1 and 2, given for plaintiffs, were abstract. It is not reversible error to give abstract charges, unless it is apparent that the jury was misled thereby. — 2 May. Dig. 564, 565. It is not so apparent here, even assuming that the charges were abstract, as counsel for appellant contends. There is no error shown. The judgment is affirmed. ’ Affirmed. Anderson, Mayfield, and Sayre, JJ., concur.