Bixby-Theisen Co. v. Evans

McCLELLAN, J. — This is the third appeal in this litigation.—-167 Ala. 431, 52 South. 843; 174 Ala. 571, 57 South. 39. All of the assignments except those numbered 2, 3, 11, and 12 and those numbered 16 to 22, inclusive, are affirmatively abandoned in the brief for appellant. According to the former decisions, there was no error in sustaining demurrers to pleas 3, 4, 5, and 7. There is no merit in the contention, sought to be given effect in (refused) charge 4, that defendant was discharged from obligation to furnish the sum not exceeding $2,000, stipulated in the contract, for that plaintiff has admitted by pleading and evidence his inability to elsewhere secure the funds necessary to complete the improvement if such additional capital was found to be required to complete the improvement. That instruction would have effected to exonerate the defendant from the obligation, of the contract, to furnish the maximum of the amount stipulated upon a speculative condition that might not have prevailed if the sum agreed to be furnished by the defendant had been seasonably furnished by him to the plaintiff. The effect of the charge (4) would have been to render the defendant’s loan assured by the contract, and the secondary, dependent, subsequent, in order, agreement of the plaintiff to complete the improvement out of his own resources if the sum defendant was to furnish did not suffice to complete the improvement, concurrent obligations. Such has hot been regarded, and it is not now regarded as the legal effect or operation of the contract in this respect. Charges 3 and 4 were well refused. It is probable the refusal of charge 4 could be justified on other additional grounds. Plaintiff was permitted, over defendant’s objections, to show the reasonable monthly rental value of the mill [512] when its dismantling was begun preparatory to making the improvement contemplated by the contract in suit. Appellant asserts that this was error, under the authority of a former ruling in this case.—174 Ala. 575, 57 South. 39. The expression of opinion in the pertinent case, cited by appellant’s counsel, does not so conclude. The plaintiff, if shown to be entitled to recover, was due to be made whole for the loss of use of the mill resulting from the tearing away of the dam. Very naturally this loss of use would have commenced when the tearing away was begun. There was no error in overruling the objection. The defendant contended below that the money advanced by defendant should serve to toll, at least pro tanto, the amount of plaintiff’s damages. This matter of recoupment was properly the subject of appropriate pleading, to the end that definite issue might be thereupon made and certain adjudication had. It could not be introduced under the general issue.-—Code 1907, § 5865; C.-P. Cement Co. v. Ala. Construction Co., 162 Ala. 380, 385, 50 South. 332; Lawton v. Ricketts, 104 Ala. 430, 16 South. 59. There is no insistence in brief upon the assignments of error based upon the refusal of the court to allow special pleas to be filed after the evidence was concluded. At any rate, this court does not, under the circumstances shown by the bill, appear to have abused its discretion in so declining to allow the special pleas-to be filed.—Cahaba Co. v. Pratt, 146 Ala. 245, 40 South. 943; Murphy v. St. Louis Co., 150 Ala. 143, 43 South. 212. Special charges 5, 6, 7, 8, 9, and 13, touching the measure or elements of damages recoverable, are not in complete accord with former rulings, in this case, on the subject of the measure or elements of the damages recoverable. There was no error in their refusal. The want [513] of proper pleading, as indicated before, brought fault into charges 1, 7, 8, 9, and 13. Special charge A, with the correct explanation the court gave to the jury in connection with it, served all the purposes of refused charge 1. No error being shown, the judgment is affirmed. Affirmed. Anderson, C. J., and Sayre and de Graffenried, JJ:, concur.