North Alabama Lumber Co. v. Board of Education , 210 Ala. 254 ( 1923 )

Counts 1, 2, and 3 were common counts, and count 4 was in trover for the conversion of the building material indicated. The complaint, as amended, was against the individuals indicated and originally averred to have composed the county board of education. Upon the filing of the complaint garnishment, in aid thereof, issued to Mr. Hodges as treasurer of the defendant county board of education.

The action of the trial court in permitting, over plaintiff's objection, the question, "The front part of that building, Mr. Howell, when Mr. Rober left, what was the condition of it, with reference to it being in line?" and the answer. "The front part was badly out of line," was erroneous. The suit was not upon the contract for the construction of the house, but upon the assumption by defendants, express or implied, to pay for material purchased and used in that construction; and, if defendants be held liable they cannot evade responsibility by showing a failure of workmanship, or variation from contract plans and specifications, on the part of the contractor.

Under the evidence a jury question, as to the liability vel non of defendants in the construction or erection of the building in question, was presented. See Richmond Locomotive Mach. Works v. Moragne, 119 Ala. 80, 83, 24 So. 834; Briel v. Exchange Nat. Bank, 172 Ala. 475, 55 So. 808; Little v. People's Bank of Mobile, 209 Ala. 620, 96 So. 763; Falk v. Moebs, 127 U.S. 597, 8 Sup. Ct. 1319, 32 L. Ed. 266; Sparks v. Transfer Co., 104 Mo. 531, 15 S.W. 417, 12 L.R.A. 714, 24 Am. St. Rep. 351; Liebscher v. Kraus, 74 Wis. 387, 43 N.W. 166, 5 L.R.A. 496, 17 Am. St. Rep. 171.

Plaintiff's evidence tended to show that defendants did not deny the debt for the material; that they asked time in which to pay, took over the possession of the building before its completion, and agreed to pay the $2,100 when the building was completed. There was evidence to the contrary offered by defendants. In Clark v. Jones, 85 Ala. 127, 4 So. 771, it was declared:

"A verbal promise by the defendant to the contractor, before the completion of the house, to pay the outstanding claims of plaintiffs and others, if the contractor would surrender the contract, is supported by a sufficient consideration, and is not within the statute of frauds; but, if the contractor had already abandoned the contract, and there was nothing due him, the promise would be without consideration, and would not support an action by plaintiffs."

See Aultman Co. v. Fletcher, 110 Ala. 452, 459, 18 So. 215; Byrd v. Hickman, 167 Ala. 351, 52 So. 426.

There was no error in refusing the affirmative charge requested by defendants as to such controverted assumption of that liability.

There was no error in excluding the letter of Thomas D. Brooks, of date June 16, 1920, to the plaintiff company; it was not in the nature of a promise to pay for the material to be furnished and used in the building that bound either of the defendants to payment.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.