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186 Ala. 521

George v. Roberts

Supreme Court of Alabama

Decided May 14, 1914

Supreme Court of Alabama · decided 1914-05-14

<p> Assumpsit. </p> <p>1. Pleading; Set-Off and Counter-Claim; Necessity of Pleading.— Set-off and counter-claim must be specially pleaded to be available, and the sustaining of demurrer to such pleas on the theory that they were available under the general issue, was error.</p> <p>2. Contracts; Pleading. — Where the action was for work and labor done upon a building, the defense that the certificate of the architect was a condition necessary to payment, must be specially pleaded.</p> <p>S. Same. — A defense based upon a provision of the building contract making the architect the arbiter with respect to difference between the parties, must be specially pleaded.</p> <p>4. Same; Modification; Mode. — -An executory contract providing for the construction of a building not being of a class required to be in writing, may be modified by parol, without any new or independent consideration.</p> <p>5. Damages; Liquidated; Building Contracts. — Where the contract provided for $10 for each day’s delay in the completion of the contract beyond the day fixed for its completion it was a provision for liquidated damages and not a penalty.</p> <p>C. Appeal and Error; Harmless Error. — The court will not consider whether it was harmful to sustain the demurrers to special pleas setting up matter not available under the general issue, where defendant offered no evidence.</p>

Relies on Shriner v. Craft · Holmes v. Richet · Fike v. Stratton

Good law ✅— No negative treatment on recordhow we know

Reversed and remanded · Decided 1914-05-14

How this case has been cited

Cited by 14 later decisions — most recently January 1988

14 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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McCLELLAN, J. —

¶1This action, by appellee, the contractor, against appellant; the owner, was stated in seven common counts and a special count, the eighth, declaring upon the breach of a builder’s contract. The court gave the affirmative charge for the defendant on all the counts except 1 and 6.

¶2The defendant presented six special pleas, besides the general issue. All the special pleas were stricken on demurrer, upon the sole ground the judgment entry recites that the matter thereof could be adduced under the general issue pleaded. This was error. With the exception of special plea 4 (payment) and. special plea 7, these several special pleas set up matters necessary to be specially pleaded as against the two counts, 1 and 6.

¶3Plea 3 asserted a set-off, or rather damages by way of recoupment.—Marlowe v. Rogers, 102 Ala. 510, 14 South. 790. Plea 5 set up a provision of the contract whereby a certificate of the architect was made a necessary condition of payment thereunder. See 6 Cyc. p. 93. Pleas 2 and 6 invoked a provision of the contract with respect to “differences,” constituting the architect the arbiter in the premises. See Holmes v. Richet, 56 Cal. 307, 38 Am. Rep. 54; Campbell v. American Co., 1 MacArthur *524(D. C.) 246, 20 Am. Rep. 591; Shriner v. Craft, 166 Ala. 146, 51 South. 884, 28 L. R. A. (N. S.) 450, 139 Am. St. Rep. 19. The defendant offered no evidence. We cannot, therefore, consider whether the erroneous striking of the pleas on the grounds stated was without injury to him.

¶4The sum of $10 per day, stipulated in this contract for delay in completion of the building beyond a day fixed by the contract, was not a penalty.—Stratton v. Fike, 166 Ala. 203, 51 South. 874; Fike v. Stratton, 174 Ala. 541, 56 South. 829. The fact that the building involved in the cited cases was located in a city, and that here in question is located in a town of less population, does not suffice to render inapt the authority of the cited cases on this point.

¶5Where, as here, an executory contract is not' of the class necessary to be reduced to writing, the parties may add to, alter, or modify the written contract by a parol agreement, without any new or independent consideration.—6 Mayf. Dig. p. 181, collating some of the more recent authorities.

¶6The judgment is reversed, and the cause is remanded.

¶7Reversed and remanded.

All the Justices concur.
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