appropriated his labor, or the result thereof, and derived a benefit therefrom. These are rights of the builder or contractor.

The owner of the building or structure to be made or erected also has correlative rights in the matter. If a contractor has failed to perform his part of the contract, or has performed it in a different manner from that provided by the contract, or abandons the work, the owner can refuse to accept it, and require performance, before being liable on the contract price or a quantum meruit; but he may, by word or act, or by a failure to speak or act, accept the partial performance, or performance in a different manner, and thereby waive strict or full performance, and render himself liable on a quantum meruit, less such damages as he may sustain from the contractor's breach, but not for the contract price, unless so agreed, after breach on the part of the contractor. That which will make an owner liable on a quantum meruit, on a partial or incomplete performance on the part of the contractor, does not necessarily amount to a waiver of his right to recoup damages for the contractor's breach; and upon the whole he should certainly have such amount deducted from the contract price as will be equal to the difference between the value of the work agreed to be done, and that of the work done. Phillips v. Seymore, 91 U. S. 646, 23 L. Ed. 341; Farmer v. Francis, 12 Ired. (N. C.) 282; McGrath v. Horgan, 72 App. Div. 152, 76 N. Y. Supp. 412; 6 Cyc. 67-69; Suth. on Dam. pp. 2156-2158.

As said and quoted above, mere occupancy by the owner of the building erected on his own land, without more, does not justify the conclusion, or warrant the inference, of acceptance of the work as done in compliance 'with the contract. Nor do part payment and occupancy, without more, justify such inference or conclusion; nor is he precluded, by such occupancy, part payment, or liability on a quantum meruit, from showing defects in the performance and recovering damages therefor. An unauthorized or improper acceptance or approval of the work by an architect or superintendent will not be a waiver of the owner's right to recover damages of the contractor for failure to fully perform. 6 Cyc. 70; authorities supra. Where a builder or contractor relies upon a quantum meruit, and there is a special contract, which was not wholly performed by him, he must show by a preponderance of the proof that the work done or material furnished was of the value claimed, over and above the damages resulting from the noncompliance with the contract on his part. 6 Cyc. 104.

On trial upon such issues, and under such evidence as appears from this record, it is a question for the jury, under proper instrue tion from the court, whether the contract has been substantially performed according to its terms, and the nature of the work, whether

the building was accepted or not, whether the work was done in a reasonable time and with reasonable diligence, whether the builder is liable to the owner in damages for breaches of the contract, if there be a breach by him, and, if so liable, the amount thereof. The authorities above cited are uniform in holding that an owner, who has sustained injury by reason of a breach of the building contract on the part of the builder, may recover in a separate action against the builder, or, if sued by the builder on a quantum meruit, that he may recoup or set off such damages as are the proximate result of the breach, the amount of which, as above stated, being the difference between the value of the work furnished or building constructed and the value of that contracted for, or the reasonable value of the extra work occasioned the owner in making the building conform to the contract stipulations. 6 Cyc. 113; Suth. on Damages, §§ 709–711.

What is said above in this opinion is not intended to conflict with the case of Carbon Hill Co. v. Cunningham, 153 Ala. 575, 44 South. 1016, and the cases cited; but it is in line with them. It was manifest error in the trial court to give and refuse the charges set out above.

As the case must be reversed and remanded, it is not necessary to pass upon the other assignments. What we have said in this opinion, we think, sufficiently passes upon and disposes of all questions material on this appeal.

Reversed and remanded.

SIMPSON, DENSON, and MCCLELLAN, JJ., concur.

(161 Ala. 337)

CENTRAL OF GEORGIA RY. CO. v.
SIMONS.

(Supreme Court of Alabama. June 8, 1909.) 1. APPEAL AND ERROR (§ 1058*)—HARMLESS ERROR-EXCLUSION OF EVIDENCE.

Error, if any, in sustaining objections to questions, was without injury, where witness testified without objection to the identical facts sought to be elicited.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4200, 4201; Dec. Dig. § 1058.*]

2. RAILROADS (§ 446*)—INJURIES TO ANIMALS ON TRACK-QUESTIONS FOR JURY.

negligent in failing to reverse the engine or apNotwithstanding an engineer may have been ply the emergency brakes, and while the cause assigned by him for his failure to do so may not be sufficient, and though he admits that he could have stopped his train sooner, had he reversed the engine or applied the brakes, yet it does not follow, as a matter of law, that the killing of a cow on the track was the proximate result of his failure to so reverse the engine or apply the brakes, or that if the train had been stopped sooner the killing would have been averted.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1628, 1637; Dec. Dig. § 446.*]

Action by M. F. Simons against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Espy & Farmer, for appellant. Crawford, for appellee.

MAYFIELD, J. This is an action of case, by appellee against appellant railroad company, to recover damages for the negligent killing of a cow of the plaintiff by the agents of the defendant railroad company. The trial was had upon the general issue, and resulted in a verdict and judgment for the plaintiff in the sum of $24. From this judgment the defendant appeals and assigns as error: First and second, the sustaining of objections to questions propounded by defendant's counsel to the engineer; and, third, the giving of the written affirmative charge for the plaintiff, by the court, at the request of the plaintiff.

It is unnecessary to decide whether or not there was error in sustaining objection to the questions propounded to the witness Walker, who was the engineer in charge of the train which killed the cow, the subjectmatter of the sult, for the reason that, if it were error (which we do not decide), it was clearly without injury, because it affirmatively appears that the witness testified without objection to the identical facts sought to be elicited by the question to which objections were sustained. Kroell v. State, 139 Ala. 1, 36 South. 1025; 5 Mayfield's Digest, p. 355.

As to the third and last assignment of error-the giving of the written affirmative charge at the request of the plaintiff-the court is of the opinion that this was reversible error. While there was no dispute or conflict that the cow, the property of the plaintiff, was killed or injured by the train of the defendant company, and while it may be said that the defendant railroad company, or its agents in charge of the train at the time and on the occasion complained of, were guilty of negligence, and while it

While the engineer may have been guilty of negligence in failing to reverse the engine or to apply the emergency brakes, and while the cause assigned by him for his failure so to do may not be sufficient (which, however, we do not decide), and though he admitted that he could and would have stopped his train earlier than he did if he had applied his emergency brakes and reversed his engine, yet it does not conclusively follow, as a matter of law, that the injury complained of was the proximate result of his failure to so apply the brakes or to reverse the engine, or that if the train had been stopped earlier the injury would have been averted. These were questions of fact which should have been left to the jury. So. Railway Co. v. Reaves, 129 Ala. 457, 29 South. 594; Choate's Case, 119 Ala. 611, 24 South. 373; Starke's Case, 126 Ala. 365, 28 South. 411. For this error the judgment must be reversed, and the cause remanded. Reversed and remanded.

is admitted that the train could have been stopped sooner if the emergency brakes had been applied and the engine reversed (which affirmatively appears was not done), yet it was a question for the jury to say whether or not such negligent acts shown by the evidence, or the failure to stop the train as soon as it could have been stopped, was the proximate cause of the injury. This was clearly a question of fact for the jury, and not one of law for the court. It was open or the jury to find, under the evidence shown by this record, that although the rain could have been stopped sooner by the application of the emergency brakes, or by reversal of the engine, it could not have

[Ed. Note.-For other cases, see Carriers, Dec. Dig. § 245.*]

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by G. F. Stanfield against the Birmingham Railway, Light & Power Company.

Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Tillman, Grubb, Bradley & Morrow and L. C. Leadbeater, for appellant. Gibson & Davis, for appellee.

MAYFIELD, J. The pleadings, evidence, and charges of the court in this case bring it indisputably within the rules of law and evidence announced in the case of Birmingham Railway, Light & Power Co. v. Sawyer (Ala.) 47 South. 67, and upon that authority

the case must be reversed.

The complaint in each count alleged the relation of carrier and passenger, while all the proof conclusively showed the relation of master and servant existed between the parties at the time of the injury. There was no tendency of the evidence to prove the relation as alleged, which was a material averment.

The general affirmative charge should have been given for defendant, as was requested in writing.

The judgment is reversed, and the cause remanded.

SAYRE, J. In Hutchinson v. Palmer, 147 Ala. 517, 40 South. 339, it was held that, where one executes a note in which he em

bodies a power of attorney authorizing an appearance and confession of judgment on failure to pay at maturity, a judgment rendered in accordance with the power is as valid and binding as if rendered on service of process. Such powers are now void. Code 1907, § 4296. The cited section, however, does not affect the case in hand.

In the transcript of the docket of the inferior court, sent to the city court in re sponse to a common-law writ of certiorari, there appears a copy of a note given by the defendant to the plaintiff, which contains the following provision: "Notice and protest on nonpayment at maturity is waived by each maker and indorser hereof, and suit may be

brought hereon in any precinct in any county in Alabama. Each maker and indorser hereby authorizes any attorney at law to appear for him in any court in term time or vacation at any time hereafter and confess a judgment," etc. It sufficiently appeared that judgment had been rendered on confession by an attorney at law without preliminary process to bring defendant into court.

(161 Ala. 598)

JEMISON v. FREED.

which is to be found in the transcript, was the basis of the judgment confessed, that it was properly certified, and was therefore properly before the city court, and is now properly here. This appeal cannot be sustained. The case-made cannot be distin

MENT.

A note provided that notice and protest on nonpayment at maturity were waived, and that suit might be brought thereon in any precinct in any county in the state, also that the maker and indorser authorized any attorney at law to appear for him in any court at any time and confess a judgment, etc. Held, that the last stipulation conferred power to confess judgment without preliminary process, and was not limited by the first stipulation, which referred merely to the venue of the judgment.

[Ed. Note.-For other cases, see Judgment, Dec. Dig. 46.*]

2. JUDGMENT (§ 53*) - CONFESSION - PROVISION IN NOTE-VALIDITY.

A provision for confession of judgment without preliminary process is invalid, and a judgment thereon may be vacated, under Code 1907, § 4296, providing that agreements or stipulations to confess judgment, or to authorize another to do so, made before commencement of suit, in which the judgment is confessed, are void, and the judgment so confessed may be annulled on motion.

[Ed. Note. For other cases, see Judgment, Cent. Dig. 90; Dec. Dig. § 53.*]

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action between J. A. Jemison and M. M. Freed. From the judgment, Jemison appeals.

Affirmed.

Bush & Bush, for appellant. Ward & Ward, for appellee.

The au

of Hutchinson v. Palmer, supra. thority to bring suit in any precinct in any county in Alabama did not limit or impair the subsequently conferred power of attorney to confess judgment without preliminary process. The first stipulation refers to the venue of the judgment, and cannot be construed as a requirement that process issue; for the sole purpose of the second is to waive such process. The two stipulations cover distinct fields, and neither trenches upon the other.

We have considered the questions raised by the assignments of error and the argument of counsel, and find no error. Affirmed.

DENSON, JJ., concur.
DOWDELL, C. J., and SIMPSON and

(161 Ala. 432) SLOSS-SHEFFIELD STEEL & IRON CO. v. SHARP.

(Supreme Court of Alabama. June 17, 1909.) 1. MASTER AND SERVANT ( 258*)—INJURY

TO SERVANT-COMPLAINT SUFFICIENCY. Notwithstanding a count for injury to a miner, averring that plaintiff was burned by a fire in the mine, "said fire being caused by the ignition or explosion of gas in said mine,'

ports, was properly refused, as at least confusing and misleading.

[Ed. Note. For other cases, see Sales, Dec. Dig. 364.*]

3. EVIDENCE (§ 355*) — PRIVATE WRITINGS ACCOUNT.

against which the charge was intended; and, of course, the court, under this state of facts, properly declined to take the question from the jury. Beall Bros. v. Johnstone, 140 Ala. 339, 37 South. 297.

Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.

Action by W. W. Beall against R. E. Byrd. Judgment for plaintiff, and defendant appeals. Affirmed.

The facts are sufficiently stated in the opinion. The following charges were refused to the defendant: (4) "The court charges the Jury that there is no evidence in this case that the lumber shipped did not come up to the warranty and to specifications called for in the order, and, if there were rejects and culls reported to Beall, the defendant is not bound by such reports." (1) "The court charges the jury in this case that if they be lieve the evidence they cannot find for the plaintiff for the items of the account introduced in evidence in this suit, growing out of the culls and rejects as shown by the account.

suit was commenced, and, producing the account in question against the defendant, testified that it was drawn from his books and was an exact copy of his books; that he himself made the original entry from which the account was drawn; that at an arbitra

tion, before the suit was brought, this account, the basis of the present suit, was used; that at that time the defendant admitted that it was correct; and that the identical account offered in evidence was the one there used. This was certainly sufficient proof for the admission of the account as evidence. It is true that the defendant denied that he admitted the correctness of this account on arbitration, and also denied that he received a copy of the statement of the account, and there may be evidence that the identical account offered on the trial was not used on the arbitration and was not the one admitted by the defendant to be correct, if such admission were made; but the truth of these disputed matters was properly left as a question for the jury.

The other charge requested by the defend

MAYFIELD, J. This is an action of assumpsit by appellee against appellant. The complaint contained four counts; the first, second, and third being common counts, and the fourth claiming damages for breach of special contract. While it appears that special pleas were filed to the complaint, yet the judgment entry shows that the trial was had upon the general issue, with leave to give in evidence any matter which might support a special plea. The trial resulted in a verdict and judgment for the plaintiff for the sum of $245, from which judgment the defendant appeals, here assigning as error the refusal of the court to give two written charges requested by the defendant, numbered 1 and 4, respectively, and the overruling of his objection to the introduction in evidence of the statement of account offered by the plaintiff on the trial.

error is assigned, was properly refused. It was not a proper charge, when applied to the evidence as shown by this record, and for the further reason alone that it was, at best, confusing and misleading, could have been properly refused. Birmingham Ry. Co. v. Wildman, 119 Ala. 547, 24 South. 548; L. & N. R. R. Co. v. Brinkerhoff, 119 Ala. 606, 24 South. 892. The mere fact that the account is shown to be a correct transcript from the books of the plaintiff, though kept by him, without more, would not authorize the introduction of the account in evidence; but that, coupled with the evidence of the plaintiff that the account had been presented to the defendant before suit brought, and that the defendant had admitted that it was correct, and with the fact that the identical account offered in evidence was the one admitted by the defendant to be correct, made the account admissible in evidence. There was, therefore, no error in the court's overruling the objection of the defendant to the introduction of the account in evidence. Rice v. Schloss, 90 Ala. 416, 7 South. 802; Joseph v. Foundry Co., 99 Ala. 47, 10 South. 327; Kilpatrick v. Henson, 81 Ala. 464, 1 South. 188; Ware v. Manning, 86 Ala. 238, 5 South. 682.

Charge No. 1 was properly refused, for the all-sufficient reason that it was in effect the affirmative charge for the defendant as to the items of the account introduced in evidence by the plaintiff. Under the evidence in this case it was clearly a question for the jury whether or not the defendant was liable to the plaintiff for the items shown by the account introduced in evidence and

The account being admissible in evidence, and there being evidence of the admission of