United States Fidelity & Guaranty Co. v. Town of Dothan

SIMPSON, J. This action is brought by the appellee to recover damages for the breach of the conditions of a bond executed by the appellant, conditioned for the faithful performance, by one R. A. Moody, of a building contract. There was no error in overruling the demurrer to the complaint as amended. A demurrer is addressed only to defects apparent on the pleading. The complaint sets out in full the conditions of the bond, alleges that said Moody entered into a contract to build a school [486] house, according to plans and specifications, for $19,-840, for the faithful performance of which said bond was executed, and the breach is that said Moody, after having done a large amount of work, abandoned it and refused to carry out his agreement, “without fault on plaintiff’s part, and plaintiff was forced to take charge of and complete said building at a large cost in the sum of, to wit, $12,000, in excess of said sum of $19,840.” This is a clear statement of a liability and of damage to the amount of $12,000. If there were any other conditions in the building contract, the nonperformance of which affected the liability of the surety, the same not being apparent upon the face of the pleadings, it was the right and privilege of the defendant to present them by plea. A demurrer, relying upon facts not appearing on the face of the pleading, would be a speaking demurrer. — 31 Cyc. 322, and cases cited. It is true that, in order to recover the amount claimed, it was necessary for the plaintiff to prove that the amount expended by it was reasonable, and it would have been more accurate pleading to have so alleged; yet the complaint states that the plaintiff was forced to expend the amount so named in completing the building, and, unless the amounts expended were reasonable, the plaintiff could not be said to have been forced to spend them. Por a like reason, the plaintiff was not required to allege that the completion of the building was in accordance with the specifications. The allegation is in effect that it could not be completed at all Avithout the expenditure of said amount; and, issue being taken on these allegations, it cannot be presumed that there were any expensive variations from the specifications, which could easily have been suggested, if they existed. [487] The next insistence of the appellant is that the court erred, in sustaining the demurrer to the twelfth plea. As will he seen by the plea, which will be set out in the statement of this case by the reporter, said plea sets up the defense that the contract between the town of Do-than and said R. A. Moody, and consequently the bond signed by said Moody and the defendant in this case, are ultra vires; said town not having the power or authority to enter into said contract, or to build the schoolhouse. The causes of demurrer are, first, that the facts set out in said plea are no answer to the complaint ; and, second, that said plea fails to set forth any facts which show that the contract sued on is ultra vires. The decisions of this court are clear to the effect that a contract which is ultra Afires is void, and that either party may plead the same as a defense to an executory contract. — Chambers v. Falkner, 65 Ala. 449, 455; Westinghouse Machine Co. v. Wilkinson & Cole, 79 Ala. 312, 316; Sherwood v. Alvis, 83 Ala. 115, 117, 3 South. 307, 3 Am. St. Rep. 695; Chewacla Lime Works v. Dismukes, Frierson & Co., 87 Ala. 344, 347, 6 South. 122, 5 L. R. A. 100; Long v. Ga. Pac. Ry., 91 Ala. 519, 521, 8 South. 706, 24 Am. St. Rep. 931. The liability of the surety folloAvs that of the principal, and the surety can make any defense, not personal to the principal, that the principal can. — 27 Am. & Eng. Ency. Law (2d Ed.) pp. 454, 455. The defense being negative, to wit, that the corporation has no poAver to make the contract,' it is difficult to see what other facts could be stated, in order to make it clearer that the defense Avas a failure of the charter to confer the poAver. The court erred in sustaining the demurrer to the twelfth plea. [488] There was no error in sustaining the demurrer to the thirteenth plea. While it is true that many of the causes of demurrer assigned in a general way have no application to this plea, yet it does not allege or show that any damage resulted to the defendant by reason of the failure of the plaintiff to continue to employ a superintendent. Consequently the plea was subject to causes 2 and 5 to the fifth plea, and cause 2 to the seventh plea, all of which were assigned by reference back to the thirteenth plea. The next insistence is that the court erred in allowing testimony as to the contents of the bond. The testimony of the principal witness on the subject of the loss and existence of the bond, and the search made for it, is that he knew about a bond executed by R. A. Moody'; that said bond Avas introduced in evidence in another case, Avhich was the last time he saAV it; that after the trial he and the clerk of the court searched the courthouse for it, and failed to find it; that his recollection is that one R. H. Walker, who represented Moody in that case,- introduced it in evidence, but he Avas not certain that it was introduced in evidence at all, though he Avas positive that the bond was there; that he looked through his own desk and other places where such papers were kept, and could not find it. He testifies, also, that the treasurer of the city is the custodian of such papers as the bond; that the chairman of the building-committee turned the bond over to the witness, but he does not know Avhether said chairman got the bond after the first trial referred to, or whether he has it uoav. Said R. H. Walker testified that he was attorney for R. A. Moody in the case referred to, and remembered seeing the bond that was signed by R. A. Moody, but did not recall that he had the bond in his custody, and had not searched for it, but did not have it, and never [489] had it. The chairman of the building committee (Cherry) testified that he never had the paper in his possession. The treasurer, the legal custodian of the bond, was not examined at all. In addition, the first-named witness (Avho is one of the attorneys in this case), when asked AAdio signed the bond, replied that it was signed by B. A. Moody and approved by the mayor; and neither he nor any other Avitness testified that the bond Avas signed by the appellant at all. The rules with regard to the introduction of secondary evidence are familiar and frequently repeated in our decisions. — Singer Mfg. Co. v. Riley, 80 Ala. 314, 316; Potts v. Coleman, 86 Ala. 94, 101, 5 South. 780; King v. Scheuer & Co., 105 Ala. 558, 560, 16 South. 923: Ala. Construction Co. v. Meador, 143 Ala. 336, 337, 39 South. 216; McEntyre v. Hairston, 152 Ala. 251; 253, 254, 44 South. 417; Perry v. State, 155 Ala. 93, 95, 46 South. 470. There Avas not a sufficient predicate for the introduction of secondary evidence of the contents of the bond. The burden rested upon the plaintiff in this case; the bond itself not being produced in evidence; and no affidavit having been made, under section 2491 of the Code of 1907, to prove the execution of the bond by the defendant. It results that the court erred in admitting secondary evidence of the contents of the bond, and also in refusing to give the general charge in favor of the defendant, as requested. The judgment of the court is reversed, and the cause remanded. Reversed and remanded. All the Justices concur.