Lane v. May & Thomas Hardware Co. , 121 Ala. 296 ( 1898 )

MoCLELLAN, C. J.

— It does not appear that the items on the pages of respondents’ memorandum book Avhich were offered in evidence were entered at or about the time the payments were made nor sufficiently that the Avitness knew the entries to be correct when they were made. The pages of the book thus offered were therefore properly excluded by the chancellor.—Kling v. Tunstall, 109 Ala. 609; Louisville & Nashville Railroad Co. v. Cassibry, 109 Ala. 697, and authorities there cited.

It was only by reference to these memoranda that it ■\vas attempted to prove the items of alleged payment in excess of that part of the contract price which was to be paid in money: the witness expressly relied upon them as his source of “information” upon which his testimony was given. And we therefore conclude that it was not made to satisfactorily appear in the case that the respondent has ever paid more than the twelve hundred and fortyffive dollars stipulated for in the contract.

Upon the whole evidence Ave have no difficulty in reaching' the conclusion that Pool built and completed the house within the time and ,in the manner required by the contract. No time for completion was specified in the contract. The implication therefore is that the house Avas to be finished within a reasonable time. It Avas finished within four months from the date of-the contract. This Avas clearly not more than a reasonable time. Besides it is not pretended: that there Avas any unwarranted delay. . It is insisted, hoAvever, that Pool did not complete the structure, but made default therein, and that it was carried on to completion by the respondent himself. The evidence does not support this' contention. We gather from it that on {September 23, 1893, the contractor, Pool, gave the respondent a written statement shoAving the amount the latter had paid on the contract, the balance due or which would be due from him and the amount the contractor owed for labor and material on outstanding bills. From this statement it appeared that the aggregate of amounts paid and owed by respondent together with outstanding bills, which the contractor OAvecl, and Avhich to the extent of any unpaid balance of the contract price might be charged on the property Avas greatly in excess of the money respondent agreed to pay. Upon this state of affairs thus coming to the attention of the respondént he declined to make further payment directly to the contractor, and from thence on to the completion of the house, Avhich was Avithin a few days thereafter, he applied the balance of his money indebtedness under the contract to the payment of labor and material expended and used in its completion. These payments though not made 'directly to the contractor, Avere essentially payments to him under the contract; and he continued to supervise and carry on the work under the contract to its completion to the satisfaction of the respondent. It is clear, Ave think, that the adoption of this mode of payment by respondent was not due to any dissatisfaction with, or default on the part of the contractor, but was due to a very natural desire on the part of the respondent to be assured that the money should go in satisfaction of claims which might if not paid become charges on the property.. This change in the mode of payment Avas obviously not an abrogation of the contract. The contract was never abrogated; but, as the chancellor found, afid as we find, was fully carried out by Pool; and its complete and satisfactory execution was accepted and acknowledged by the respondent.

The contract to build the house being thus fully executed by Pool, and that part of the price which was to be paid in money having been paid, or nearly so, there remained to be done only the conveyance to Pool of the lot of land'which the contract bound the respondent to convey to him upon the completion of the house. The contract for this conveyance having been duly assigned by Pool to the complainants they are entitled to have it specifically enforced in accordance with the prayer of their bill.

The demurrer to the bill is not insisted on by counsel ; and we advert to it only to say that it was properly overruled.—Davis v. Williams, (MS.)

Affirmed.