6 Div. 219.
October 16, 1924.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
Thompson Thompson, of Birmingham, for appellants.
Counsel argue that the counts are deficient, and cite Phillips v. Sellers, 42 Ala. 658; Bohanan v. Thomas, 159 Ala. 410, 49 So. 308; 5 C. J. § 249.
F. D. McArthur, of Birmingham, for appellee.
The counts are good. Code 1907, § 5382, form 11. There was evidence tending to establish plaintiff's case, and the affirmative charge was properly refused. So. States F. I. Co. v. Kronenberg, 199 Ala. 164, 74 So. 63.
This is a suit by F. E. Butcher, doing business as Butcher Tool Hardware Company, against Mann Brothers, and the individuals composing the partnership, for work and labor done by one William Spencer for the defendants, and on account between defendants and William Spencer, which claim for work and labor, and the account were duly transferred and assigned to the plaintiff by William Spencer.
The case was tried by a jury, they rendered a verdict in favor of plaintiff, and from a judgment thereon by the court this appeal is prosecuted by the defendants.
There are two counts in the complaint. Each was amended. The court overruled demurrers to each as amended. Count 1 is a claim for work and labor done by William Spencer for the defendant, and count 2 is a claim for an amount due William Spencer by the defendant on account. Each count by averments sufficiently complies with the statute (section 2489, Code 1907), and follows substantially the form, No. 11, approved by the statute (section 5382, Code 1907). These counts were not subject to the grounds of demurrer assigned to them. The former avers the claim for work and labor, and the latter the account was duly assigned and transferred to plaintiff for a valuable consideration, and defendant had notice of the transfer, and each avers said account or sum of money is the property of plaintiff, and is due and unpaid. It is true each count states plaintiff, "as assignee of William Spencer, for a valuable consideration claims of the defendant." This, when taken in connection with the entire count, merely tends to show the source of the title and right of plaintiff to the debt sued for. The court did not err in overruling the demurrers to these counts as amended. Authorities, supra.
The defendant pleaded general issue, with leave to give in evidence any matter that would be admissible in defense, set-off, and recoupment of the action, to have effect as if so pleaded; and with leave for plaintiff to give in evidence any matter which would be admissible in reply to such defensive matter.
The defendant had a contract with the city of Birmingham to repair the North Birmingham school, under the supervision of Warren, Knight, and Davis, architects; the work to be done and materials to be furnished according to plans and specifications mentioned in the contract. William Spencer agreed with defendants to furnish labor and material for painting the North Birmingham school and execute the work as per plans and specifications for the sum of $1,250. During the progress of the work, defendants paid him the sum of $600 in money on this contract. He owed plaintiff the sum of $600, and in part payment thereof, on September 23, 1922, gave plaintiff this order on the defendants:
"Mann Bros. Contracting Co.: Please pay Butcher Tool Hardware Company balance on North Birmingham school for William Spencer painting contract when job is accepted by architect, which balance will be, after the date, $404. [Signed] William Spencer."
The plaintiff gave William Spencer credit for this amount on his account. This order was presented by plaintiff to the defendants, and they wrote the following thereon:
"If the above amount is not right, will notify Monday We agree to pay balance coming to William Spencer to Butcher Hardware Company when job accepted by architect.
"[Signed] Mann Bros., by Ed Mann."
There was evidence that William Spencer had not completed the job, and that plaintiff completed it for him, and the balance due William Spencer under the contract which belonged to the plaintiff was about $400. There was evidence that the architects "accepted the completed work as satisfactory," and the defendants were paid for it.
The evidence for the defendants tended to show that William Spencer failed to complete the painting contract according to the plans and specifications; that they purchased and paid for material to complete the job, and employed and paid workmen to perform the labor; and the reasonable cost of material furnished and cost of the labor to do the unfinished work exceeded the balance due William Spencer by the defendants, under their contract with him; that the painting job was never completed according to contract; and they owed William Spencer nothing. There is ample evidence tending to establish plaintiff's cause of action. The evidence was in direct conflict on some material matters at issue, and the general affirmative charge, with hypothesis, requested by the defendants in their favor, was properly refused by the court. Southern States Fire Ins. Co. v. Kronenberg, 199 Ala. 164, headnote 14, 74 So. 63.
Written charge, requested by defendants and refused by the court, set out in assignment of error No. 13, was properly refused. It is misleading and argumentative. It assumes too much and fails to state if the work done and material furnished were necessary, and fails to state defendants would be entitled to reasonable compensation for the necessary labor and material furnished by them to complete the contract of William Spencer, according to the plans and specifications.
There are some rulings of the court, on the admission and exclusion of testimony, to which the defendants reserved an exception, and which are assigned as errors. An examination of these rulings, in consultation, shows no reversible error, if error at all, was committed by the court. A detailed discussion of them would be of no benefit, and we are convinced the rights of the defendants were not injured by any of them.
The motion for new trial was properly overruled by the court. There is ample evidence to support and sustain the verdict of the jury, and it does not appear to be wrong or unjust. Jena Lumber Co. v. Marlowe Lumber Co., 208 Ala. 385, 94 So. 492.
The judgment is affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.