author: WALKER, Justice,

text:
    Odis BROWN et ux. v. ELTON CHALK, INC. and Elton Chalk, Individually.
    No. 50244.
    Supreme Court of Mississippi.
    May 17, 1978.
    Johnston & Adams, Lem Adams, III, Brandon, for appellants.
    McLaurin, Nicols & Kelly, John C. McLaurin, Brandon, for appellee.
    Before WALKER, BOWLING and COF-ER, JJ.
   WALKER, Justice,

for the Court:

This is an appeal from an order of the Circuit Court of Rankin County sustaining a demurrer to appellants’ declaration. The declaration recited, among other things, that Elton Chalk, Inc. constructed a residence which plaintiffs purchased on February 26, 1975; that there was an implied warranty by the defendants that the house was built in a workmanlike manner; that certain defects appeared which the defendants attempted, unsuccessfully, to repair; that these defects have never been repaired by the defendants in breach of the implied warranty and that the plaintiffs were entitled to be compensated for the alleged resulting damages.

Since this appeal is from an order sustaining a demurrer, the facts alleged by the complainants and facts which are reasonably and necessarily implied therefrom must be taken as true. Poole v. Brunt, 338 So.2d 991 (Miss.1976).

The appellants allege in their brief that “The basic theory upon which the Appellants sought to recover under the allegations of the declaration, is that as between a builder-vendor of a new home and his vendee, there is by operation of law an implied warranty that the home is built in a good workmanlike manner and that the materials used were of good quality.”

In the case of Oliver v. City Builders, Inc., 303 So.2d 466, 469-470 (Miss.1974), in a specially concurring opinion, Justice Inzer, joined by four other justices, did not concur with a statement in the original opinion which tended to hold that the maxim of caveat emptor and the judicial doctrine of merger leaves little or no room for an implied warranty between a builder-vendor and the first purchaser saying:

I concur in the result of the majority opinion insofar as it holds that the rule of strict liability in tort or products liability does not create liability on the part of a builder-vendor to remote purchasers of a permanent structure on real estate. However, I do not concur with the opinion insofar as it tends to hold that the maxim of caveat emptor and the judicial doctrine of merger leaves little or no room for an implied warranty between a builder-vendor and the first purchaser. It has long been the rule in this state that a builder-vendor of a new home is liable to his vendee for latent defects. Mincy v. Crisler, 132 Miss. 223, 96 So. 162 (1923).
The common law maxim of caveat emptor was fundamentally based on the premise that the buyer and seller dealt at arm’s length and that the purchaser had means to gain information concerning the subject matter of the sale equal to the seller. However, under modern conditions this rule has no'application to latent defects in products built or manufactured by the vendor. Furthermore, the maxim of caveat emptor has been gradually restricted and circumvented until it is now a mere shadow of itself. To apply the maxim to an inexperienced buyer of a new home in favor of an experienced builder would result in a manifest denial of justice in many cases.
The rule that parties to a transaction who finally reduce its terms to writing merge all previous agreements into the writing, does not preclude an implied warranty as between a builder-vendor and the first purchaser. An implied warranty arises by operation of law and when it arises it cannot be destroyed or defeated by the mere passage of title through a written instrument.
It is my opinion that as between a builder-vendor of a new home and his vendee, that there is and should be an implied warranty that the home was built in a workmanlike manner and it is suitable for habitation. However, this implied warranty does not extend to remote purchasers of the home.

The appellants are correct in their contention that as between the builder-vendor of a new home and his vendee there is an implied warranty that the home was built in a workmanlike manner and that it is suitable for habitation. However, a party bringing suit based upon such an implied warranty must allege in his declaration, inter alia, that (1) the house is new; and (2) that the plaintiff was the first purchaser. Neither of these allegations were contained in the declaration nor are they reasonably or necessarily implied from the facts alleged in the declaration. These allegations are contained in the appellants’ brief, but it is well settled that we must confine ourselves to the facts shown by the record and may not consider statements of facts contained in the brief. St. Louis Fire & Marine Ins. Co. v. Lewis, 230 So.2d 580 (Miss.1970). Therefore, the judge of the circuit court properly sustained the demurrer, and the judgment of the lower court is affirmed.

Since the order sustaining the demurrer and dismissing the declaration does not recite that the petitioners declined to plead further before their petition was dismissed, we affirm the action of the lower court sustaining the demurrer but remand the cause so that the plaintiffs may amend their declaration, if they so desire, within thirty days from the date the judgment of this Court becomes final.

AFFIRMED, BUT REMANDED TO ALLOW PLAINTIFFS TO AMEND WITHIN THIRTY DAYS.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, BROOM, LEE, BOWLING and COFER, JJ., concur.

      . Three other Justices filed a dissent to the original opinion in which they expressed the opinion that the doctrine of strict liability was applicable.

      . Crowson v. Crawford, County Supt. of Education, 216 Miss. 770, 778, 63 So.2d 231 (1953).


source: Caselaw Access Project

author: SUGG, Justice,

license: Public Domain

text:
    Mildred Eloise MURRAY v. Garland Loyd MURRAY et al.
    No. 49952.
    Supreme Court of Mississippi.
    May 17, 1978.
    Barry H. Powell, Jackson, for appellant.
    Thomas, Price, Alston, Jones & Davis, Charles R. Davis, Billups S. Allen, Jackson, for appellees.
    Before SUGG, WALKER and COFER, JJ.
   SUGG, Justice,

for the Court:

This case is before us on appeal by Mildred Eloise Murray from a decree of the Chancery Court of the First Judicial District of Hinds County sustaining a plea in bar to her bill of complaint. Mrs. Murray’s bill sought to impress a lien on certain real property to secure the payment of separate maintenance and to set aside conveyances to the property on the ground that the conveyances were fraudulent.

On December 10, 1970, Garland Murray, husband of the appellant and one of the appellees in this case, filed a bill of complaint for divorce, cause number 81,733, in the Chancery Court of the First Judicial-District of Hinds County. Mildred Murray filed her answer to the bill for divorce. She made her answer a cross-bill for separate maintenance seeking to set aside, as fraudulent, conveyances of certain real property and to impose a lien on the property in her favor to secure payment of separate maintenance. She attempted to join as cross-defendants, W. Clyde Murray and Helen McDonald, the grantees of the alleged fraudulent conveyances.

A final decree was entered November 17, 1971 in cause number 81,733, which dismissed Garland Murray’s bill for divorce, awarded Mrs. Murray a decree for separate maintenance in the amount of $275 per month, dismissed the cross-bill, without prejudice against cross-defendants, W. Clyde Murray and Helen McDonald, and denied the other relief prayed for in the cross-bill. Before the hearing on the bill and cross-bill in cause number 81,733, the court held that new parties could not be brought in by cross-bill and limited the hearing to the issues between the original parties, Mr. and Mrs. Murray. The court refused to permit new parties to be brought in by cross-bill under the authority of Section 382, Mississippi Chancery Practice, 2d Edition (1950) which reads as follows:

New parties cannot be introduced into a cause by a cross-bill. If the complainant desires to introduce new parties he amends his bill and makes them. If the interest of the defendant requires their presence he takes the objection of non-joinder, and the complainant is forced to amend or his bill is dismissed. If at the hearing the court finds that an indispensable party is not on the record it refuses to proceed. These remedies cover the whole subject and a cross-bill to make new parties is improper and irregular, and is generally unnecessary. It is true that occasionally it is possible for a complainant, whether with or without such a purpose, to so frame his bill as to render a cross-bill useless or of but limited service, and that our courts in view of such situations have sought in every admissible way to advance the remedy by cross-bill in order, in every case possible, to dispose of the whole controversy: nevertheless, because an entire departure from the rule as to new parties would so easily enable a defendant to greatly embarrass and unduly delay a cause by bringing into it additional and discordant parties for that purpose, or at least with that distinct result, such a departure has been steadily refused both by our courts and by our legislature, — and it is fairly safe to say that no deviation from such a sound and salutary rule will be made. All the supposed benefits that could be derived from making new parties to a cross-bill may be obtained now by an independent bill, and by the device of the consolidation of causes.

On October 15, 1971 while cause number 81,733 was pending and before the final decree, Mildred Murray filed an independent bill for separate maintenance (cause number 84,311) against Garland Murray in the Chancery Court of the First Judicial District of Hinds County seeking to set aside as fraudulent, conveyances to certain real property and to impress a lien upon the property. W. Clyde Murray and Helen McDonald were made defendants to this bill as grantees of defendant, Garland Murray. An amended bill of complaint was filed by Mildred Murray on November 18, 1971 which alleged that a final decree was rendered November 17, 1971 in cause number 81,733. A second amended bill was filed April 14, 1976 to add as defendants other grantees of conveyances from the original defendants, W. Clyde Murray and Helen McDonald.

Defendants answered and included a plea in bar alleging that the final decree of November 17, 1971 in cause number 81,733 settled all substantial issues in the present action and was res judicata of all claims of Mrs. Murray set out in her second amended bill. The court sustained the plea in bar, and the only error assigned is:

The court erred in ruling that the issues in this suit involving the setting aside of alleged fraudulent conveyances and the im-pressment of a lien to secure payment of separate maintenance had been litigated and ruled upon in a prior suit between the litigants, cause 81,733 in the court below, so as to constitute res judicata to the instant action.

Four identities must be present before the doctrine of res judicata is operative. According to Pate v. Evans, 232 Miss. 6, 97 So.2d 737 (1957); Rawlings v. Royals, 214 Miss. 335, 58 So.2d 820 (1952), and Palmer v. Clarksdale Hospital, 213 Miss. 611, 57 So.2d 476 (1952), and cases therein cited, these identities are: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of the persons and parties to the action; and (4) identity of the quality or character of the person against whom the claim is made.

A grantee is a necessary party in an action to set aside a fraudulent conveyance. Duckworth v. Allis Chalmers Mfg. Co., 247 Miss. 198, 150 So.2d 163 (1963); Taylor v. Webb, 54 Miss. 36 (1876); Stanton v. Green, 34 Miss. 576 (1857). See also, 24 A.L.R.2d 395 (1950) at 422 and 37 C.J.S. Fraudulent Conveyances § 345, p. 1176 (1945). See also, Griffith, Miss. Chancery Practice, § 121, p. 118 (1950).

A grantor is not a necessary party in an action to set aside a fraudulent conveyance. Duckworth v. Allis Chalmers Mfg. Co., supra; Taylor v. Webb, supra. Leach v. Shelby, 58 Miss. 681 (1881) approved the decision in Taylor v. Webb, supra. Justice Griffith in his excellent work sets forth the necessary parties in suits to set aside fraudulent conveyances in the following language:

In past years suits to set aside fraudulent conveyances were of frequent occurrence, and even yet they are often presented. In these suits it has been broadly held that all parties who are alleged to have been connected with the fraudulent transactions, all with whom accounts arising in the matter are prayed to be taken and whose several interests therein are to be adjusted are proper parties. The difficulty that seems to have presented itself in these cases is as to whether the fraudulent grantor or his heirs are necessary parties. In an earlier case an affirmative intimation was made on this point, but in later cases it was held that they are not necessary parties, although proper parties, and might be omitted if the circumstances justified. Of course, the party to whom the property has been conveyed is a necessary party to set aside a deed on which the title conveyed stands. (Sec. 121, Mississippi Chancery Practice, 2nd Edition, at 118).

It is therefore well established that: (1) new parties may not be brought in by a cross-bill; (2) grantees are necessary parties in actions to set aside fraudulent conveyances; (3) grantors are proper, but not necessary parties, in actions to set aside fraudulent conveyances. In the first case, number 81,733, the trial court properly limited the trial to the bill for divorce and cross-bill for separate maintenance, therefore, the issue of whether the conveyances from Murray to his grantees were fraudulent was not at issue and was not adjudicated. The decree of November 17, 1971 was not a bar to Mrs. Murray’s independent action against Murray and his grantees because three of the four requisite identities necessary to bring into play the doctrine of res judicata were missing, namely, identity of the thing sued for, identity of the cause of action, and identity of parties to the action. We hold that the trial court erred in sustaining the plea in bar.

It was argued by the appellees in this Court that they have been prejudiced by the unconscionable delay of Mrs. Murray in prosecuting her suit and that she is guilty of laches. The original bill (number 84,311) to set aside conveyances as fraudulent, was filed on October 15,1971, but was not heard until July 14, 1976. The defense of laches was not raised by the appellees either in their answer or plea in bar, and was not at issue before the trial court. Upon remand, the appellees may plead laches.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


author: FAULKNER, Justice.

text:
    Harold Ray ROGERS v. Ernest E. MITCHELL et al. (two cases). Ernest E. MITCHELL et al. v. Harold Ray ROGERS.
    SC 2672, SC 2673 and SC 2750.
    Supreme Court of Alabama.
    Feb. 24, 1978.
    Rehearing Denied May 19, 1978.
    Walker Norris and T. A. Leonard, Jr., for Norris & Leonard, Birmingham, for Harold Ray Rogers, appellant.
    C. V. Stelzenmuller and James M. Holmes, Birmingham, for appellants, Ernest E. Mitchell et al.
    C. V. Stelzenmuller, Birmingham, for ap-pellee, Berman Realty Co., Inc.
    James M. Holmes, Birmingham, for Ernest E. Mitchell and Geraldine Mitchell, ap-pellees.
    T. A. Leonard, Jr. and Walker Norris, Birmingham, for appellee, Harold Ray Rogers.
   FAULKNER, Justice.

On February 28, 1975, Rogers entered into a lease agreement with the Mitchells, and at the same time the parties closed the purchase of an auto parts business located on the property. The printed lease, which by its terms began on March 1 and ended on February 28,1977, contained a typewritten provision, “Lessee has option to renew this lease at its expiration for an additional two years at a rental to be agreed on at that time.” The lease also provided that in the event of a casualty, “If the insurance proceeds are insufficient to effect such restoration or repairs [to the condition existing immediately prior to the casualty], Lessor, at its option may cancel this lease by written notice to Lessee within thirty (30) days after the occurrence of such casualty.”

On February 26, 1976, the building was damaged by fire. Rogers immediately repaired the damage. There is a dispute as to whether Rogers did this pursuant to an oral agreement that repair costs would be set off against the rent or in spite of the Mitch-ells’ request that he not repair the building. Rogers paid rent until March.

On March 19, Rogers was notified that the Mitchells considered the building so severely damaged that they were terminating the lease.

On March 22, Rogers gave notice of his intent to exercise his renewal option. On April 5, the Mitchells gave Rogers 10 days notice to quit the premises and directed him to cease repairs. Rogers continued repairs.

On July 12, the Mitchells sold the property to Berman Realty Co.

Three actions were filed in this matter: (1) an unlawful detainer action against Rogers by Berman Realty (pending trial de novo in the Circuit Court, the Mitchells were substituted as plaintiffs); (2) a declaratory judgment action seeking to determine the validity of the option, filed by Rogers against the Mitchells; and (3) an action by the Mitchells against Rogers to recover past due rent, damages for unlawful detention from March 1, 1976 through February 28, 1977, and double damages for the period after February 28,1977 under Tit. 7, § 977. Rogers counterclaimed for the repairs he had made.

Cross-appellants, the Mitchells, state in brief as follows:

“The jury brought in verdicts as follows:
“1. In favor of the Mitchells in the unlawful detainer action. (Now on appeal to the Supreme Court, Case No. S.C. 2672 and S.C. 2673).
“2. In favor of Mitchell on detinue.
“3. In favor of Mitchells on Rogers’ counterclaim for repairs. (Not on appeal)
“4. Against the Mitchells for damages and rent, attorneys fees, etc. (CR. 13)
“It is the latter judgment which is appealed for review in this case [S.C. 2750].”

The three eases, S.C. 2672, S.C. 2673, and S.C. 2750 were consolidated for appeal.

The judgment of the trial court reads:

“JUDGMENT
“May 11,1977. Case tried to a jury on May 9, 10 and 11 and jury verdict in favor of defendant and against plaintiffs on plaintiffs’ claim of damages, and in favor of plaintiffs and against defendant on defendant’s counterclaim, and in favor of plaintiffs and against defendant for personal property sued for.
“Judgment is hereby rendered in favor of plaintiffs and against defendant for the following property: [For brevity, the items of personal property are omitted here.]
“All court costs in this court and in the Civil Court of Jefferson County are taxed against defendant and his sureties Walker Norris and T. A. Leonard, Jr.”

This is not a judgment for damages, rent and attorneys’ fees — it is a judgment in detinue. The Court of Civil Appeals reversed this judgment on November 2, 1977, because of failure to assess the alternate value of the property sued for. See Rogers v. Mitchell, 351 So.2d 612 (Ala.Civ.App.1977).

There is no final judgment to support an appeal; consequently, it is the duty of this court to dismiss the appeals ex mero motu. Powell v. Republic National Life Insurance Co., 293 Ala. 101, 300 So.2d 359 (1974).

APPEAL DISMISSED.

TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


author: ALMON, Justice.

text:
    William E. KING and Faye King v. Howard W. WESTBROOK and Slenith K. Westbrook.
    SC 2697.
    Supreme Court of Alabama.
    April 21, 1978.
    Rehearing Denied May 19, 1978.

      G. W. Nicholson, Birmingham, for appellants.
    Charles W. Gorham, of Gorham, Natter & King, Birmingham, for appellees.
   ALMON, Justice.

The Kings sought to enjoin the West-brooks from using a service drive which runs across the Kings’ property. The West-brooks claim an easement which gives them the right to use the driveway.

The circuit court denied the injunctive relief, holding that the Westbrooks had an express easement and an implied easement of necessity. We reverse.

The Kings and Westbrooks are next door neighbors in Glenbrook Estates in Birmingham. The Kings own Lot 14 and the West-brooks own Lot 15. Although both lots front on Valleybrook Road, a public road, neither has a separate driveway to Valley-brook Road. The service drive is both parties’ means of ingress and egress. The service drive crosses the Kings’ property and ends at the boundary of their lot and the Westbrooks’ lot. (See attached map.)

The dispute arose when the Westbrooks petitioned to have the city garbage truck use the service drive. The Kings opposed this use of the drive because the truck would cause damage to the thinly paved drive.

The topography of this area is irregular. It was described as mountainous or hilly terrain. The original owner and developer thought it unwise for some of the lots to have individual driveways entering Valley-brook Road.

A map or plat of this portion of Glen-brook Estates was filed in 1956. Actual development of the area began in 1960. In May, 1960, a map or plat was filed which shows that the service drive runs from the boundary line of Lots 5 and 6 to the boundary line of Lots 14 and 15. The map or plat contains an affidavit which states:

“We, the undersigned, A. C. Coulter, Jr., a civil engineer and surveyor and the Southern Investment Land Company, Inc., as owner of Lots 6, 7, 8, 9,10,11,12, 13 & 14, Block 3, of Second Sector of Glenbrook Estates, certify that this is a correct map or plat of an easement for a private service drive or driveway for access to said lots. The easement shown by above map is adopted by the said Southern Investment Land Company, Inc., as owner, and same shall be a covenant running with the land and shall be binding upon all future owners.”

In July, 1960, a Maintenance Agreement regarding the service drive was filed. It states that the service drive is for the benefit of the owners of Lots 6 through 14 and is a covenant running with the land. The agreement requires the owners of Lots 6 through 14 to maintain the drive in a reasonable condition. The Westbrooks have refused to contribute anything for the upkeep of the drive.

Two issues are presented for review: (1) whether the evidence supports the court’s finding that the Westbrooks have an implied easement of necessity; and (2) whether the instruments creating the service drive are ambiguous, thereby allowing parol evidence to be admitted to show that through a drafting error Lot 15 was not expressly included.

An easement of necessity cannot be created over the land of another when one can get to his property over his own land. The evidence in this case is uncontradicted and it is manifestly clear that no necessity exists. Bazzell v. Cain, 285 Ala. 661, 235 So.2d 805 (1970). The court erred in ruling the Westbrooks had an implied easement of necessity.

The court also ruled the Westbrooks had an easement by express grant. This conclusion is based on affidavits by James T. Sutliff, President of Southern Investment, and Joseph Miller, Jr., the draftsman of the service drive map and maintenance agreements, which state that it was only through a drafting error that the map and maintenance agreement do not include Lot 15.

It has been the law of this State for quite some time that an instrument may not be reformed for a unilateral mistake absent fraud. Mutuality of mistake is required. Darden v. Meadows, 259 Ala. 676, 68 So.2d 709. While reformation was neither sought nor granted in this case, the principle is the same. The instruments in question are clear and unequivocal. They apply only to Lots 6 through 14. The owner of Lot 15 acquired no interest by these instruments in the service driveway. Under these circumstances the affidavits of Sutliff and Miller were inadmissible. The instruments being unambiguous and there being no showing of mutuality of mistake, parol evidence is inadmissible to vary the terms of the instruments. Foster v. Carlisle, 159 Ala. 621, 48 So. 665 (1909); Donehoo v. Johnson, 120 Ala. 438, 24 So. 888 (1898); Guilmartin v. Ward, 76 Ala. 204 (1884).

For the reasons set forth, the judgment must be reversed and the cause remanded.

REVERSED AND REMANDED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.

EXHIBIT “C” to follow.


author: BEATTY, Justice.

text:
    Kirby E. UNDERWOOD, as Executor, etc. v. Willie JARVIS et al.
    77-13.
    Supreme Court of Alabama.
    April 28, 1978.
    John W. Johnson, Jr., Lanett, for appellant.
    E. Drexel Meadors, West Point, Ga., for appellees.
   BEATTY, Justice.

This is an appeal from an order holding that certain debts were not covered by a mortgage on real estate, and denying an accounting. We affirm in part, reverse in part, and remand.

The action was initiated by Willie Jarvis who sought a temporary restraining order against Underwood, executor of the estate of Sybil Jarvis Underwood, on the ground that Underwood was seeking to foreclose a mortgage upon her homestead executed on November 30, 1962, to which she was not a party. That temporary order was granted. The defendant made a general denial of the plaintiff’s allegations and also filed a counterclaim, joining Malcolm Jarvis, husband of the plaintiff, Willie Jarvis, as a counterclaim defendant.

The gist of the counterclaim was that over a period of years Malcolm and Willie Jarvis had borrowed various sums of money from Sybil Jarvis and either failed or refused to repay them. Certain items described as “a partial list” were alleged:

(a) The sum of $6,425.00, secured by a mortgage on real estate, on November 30, 1962;
(b) The sum of $2,700.00 on February 8, 1956;
(c) The sum of $4,500.00 in March, 1958;
(d) The sum of $1,000.00 in February, 1958;
(e) The sum of $16,000, secured by a mortgage on real estate, on January 26, 1959 from Guaranty Savings Life Insurance Company;
(f) The sum of $13,150.78, secured by a mortgage on real estate on the same property, on September 15, 1961, from First Federal Savings of West Point;
(g) The sum of $19,292.00, secured by a mortgage on the same property, on April 2, 1963. The sum of $12,905.55 of the proceeds was used allegedly to satisfy the First Federal debt, and the balance went either to the loan costs or to Malcolm Jarvis. Underwood also alleged that Sybil made payments on the note to Valley National Bank in the amount of $14,-980.00; that following her death Malcolm paid nothing on it, and that Underwood satisfied the balance of $5,177.27 on January 30, 1976. Underwood alleged that Malcolm agreed (with Sybil) to make the payments on all of these mortgage debts but failed to do so;
(h) That in 1959 Sybil secured a debt of Malcolm’s in the amount of $7,000.00 owed to Valley National Bank by pledging her individual savings account as security; that Sybil was required later to pay this debt which Malcolm did not repay;
(i) That in February, 1970 Sybil borrowed $4,800.00 from Citizens National Bank of Shawmut which then was lent by Sybil to Malcolm, and that Malcolm repaid only $205.00 of this loan following Sybil’s death;
(j) That in October, 1962 Sybil borrowed $1,389.40 from Liberty National Life Insurance Company on an insurance policy. This sum was deposited to the account of Jarvis Motors on Malcolm’s agreement to repay it, but that he failed to do so;
(k) Payment of certain amounts of Sybil for Malcolm “from time to time” in the aggregate amount of $873.44;
(l) That certain bank accounts held by Sybil in trust, containing a total of $26,-354.00, were paid over by her to Malcolm who failed to perform his promise to repay them; and
(m) That at various other times Sybil lent Malcolm various sums which he failed to repay, and that Malcolm should be required to account for these and repay them.

Underwood, the counterclaim plaintiff, then alleged that

[a]ll funds loaned by the said Sybil J. Underwood to the Counterclaim Defendant subsequent to the 30th day of November, 1962, are secured by that certain mortgage which Counterclaim Defendant and wife, Willie Jarvis, executed to the said Sybil J. Underwood due to the future advance clause which is contained in such mortgage.

After a hearing conducted ore tenus at which testimony and exhibits were introduced, the trial court found that there was owed to Sybil’s estate by Willie and Malcolm Jarvis on the mortgage sought to be foreclosed the sum of $6,425.00, which the court referred to as “specifically secured in said mortgage.” However, the trial court also found that it was not the intention of the parties “for the note (mortgage) to stand as security for any antecedent debts or other existing debts the mortgagors owed to Sybil J. Underwood, Deceased.”

From this order the counterclaim plaintiff, Underwood, has appealed, contending that the uncontroverted evidence supports an opposite conclusion.

The document in question was what may be referred to as an “Alabama Real Estate Mortgage” form, containing printed matter as well as spaces throughout designed for the purpose of inserting relevant information. In addition to its reference to an indebtedness of $6,425.00 evidenced by a note payable on demand, the consideration clause contained a “dragnet” clause which recited:

NOW, THEREFORE, in order to secure the prompt payment of the indebtedness evidenced by the above described note, the performance of all of the covenants and agreements made in the said note, and also to secure any other indebtedness owing by the Mortgagor to the Mortgagee, regardless of amount, and including future advances before full payment of the indebtedness secured by this mortgage, . . . (emphasis added)

This mortgage encumbered two lots of real estate near Fairfax, was dated and acknowledged on January 30, 1962, and was executed by Malcolm and Willie Jarvis.

Such a clause may secure indebtedness other than that which is specified in the mortgage instrument. As stated in First National Bank of Guntersville v. Bain, 237 Ala. 580, 188 So. 64 (1939):

[i]t is now the settled law of Alabama, that clear and express provisions extending the security to other existing indebtedness or to future indebtedness between the same parties are given full effect. .

Accord, City National Bank of Dothan v. First National Bank of Dothan, 285 Ala. 340, 232 So.2d 342 (1970).

An analysis of the Bain decision will be helpful here, not only because of its authority as precedent but also because the trial court and both parties in this case have relied upon it.

The mortgage in the Bain case was executed on March 5, 1925 and contained a consideration clause which referred first to an indebtedness of $7,500.00, and recited:

[a]nd to secure the payment of the same, and any other indebtedness owing by the said W. N. Bain to the grantee before the full payment of this mortgage^’] .

At the time this mortgage was executed the mortgagor, Bain, owed the mortgagee-bank an aggregate debt of $18,895.25 evidenced by promissory notes executed by him. One of these debts was originally incurred by Bain alone on March 5, 1925 and was secured by a recorded mortgage. Another debt was evidenced by Bain’s promissory note for $6,179.95, dated March 1, 1928. Bain had given this note to the bank apparently as a satisfaction of some promissory notes of one Grizzell which Bain had en- ' dorsed. Still another Bain debt arose from Bain’s earlier endorsement of some promissory notes given to the bank by his wife, Bessie. These were “taken up” by Bain on March 1, 1928 when he gave the bank his own promissory note for $5,215.30.

The trial court issued a reference to the register in equity to ascertain the amount of indebtedness secured by the mortgage in issue. The register found that the Grizzell and Bessie Bain indebtednesses were not secured because it was “the mutual understanding of the contracting parties, in said mortgage to secure only the indebtedness of W. N. Bain . . ..” That is, the latter two debts were not secured by the mortgage. The trial court confirmed the register’s report.

On appeal, this Court reversed the decree adopting that report. After pronouncing the rule to which we have alluded earlier, giving effect to the clear and express provisions of the mortgage instrument, it characterized that language as a contractual stipulation:

Its limitations are that such debts shall be ‘owing by said W. N. Bain,’ and he must owe them before ‘full payment of this mortgage.’ In other words, when he comes to satisfy and obtain a surrender of this security, he must pay any other indebtedness he then owes the bank. It is a prospective security in this regard.

Calling attention to the language of the “defeasance clause” of the Bain mortgage, which varied from the language of the “consideration clause,” this Court commented that the “more usual and appropriate place” for references to other indebted-nesses was the “consideration clause,” in order to avoid a misleading interpretation. The defeasance clause contained in the Bain mortgage stated:

“Upon condition, however that upon the payment of the indebtedness hereby secured, this conveyance to be void, payment of taxes and insurance, the satisfaction of prior incumbrances and other loans and advances to the mortgagor by the mortgagee before the full settlement and payment of this mortgage and all expenses of recording are to be a part of this mortgage indebtedness.”

This particular defeasance clause which, the Court stated, was “intended to define the terms and conditions upon which the mortgage shall be satisfied, cease to be security for debt, and become void” did not clearly identify those debts to be paid before the mortgage ceased to be a security. “The two clauses are to be construed together as part of one instrument, one contract.” Ibid, 237 Ala. at 583, 188 So. at 66.

Having laid down these guiding principles, and stressing the importance of a clear and explicit intention to cover several debts when the mortgage expressly secures only one, the Court applied them to the facts. It was shown that the two debts in question were not due at the time the mortgage by Bain and wife to the bank was executed. Bain’s liability at that time, moreover, was only contingent because he was only an endorser on the notes of Grizzell and Bessie Bain. When subsequently these were “taken up” by Bain, who gave his personal notes to the bank, the Court found, these became his loans. Cf. Crescent Credit Corp. v. Union Bank & Trust Co., 51 Ala.App. 683, 288 So.2d 744 (1974). In reaching the conclusion that these two debts fell within the express terms of the mortgage which secured “any and all debts owing by W. N. Bain before full payment of the mortgage,” the Court made special note of the relevancy of the amount of the recording tax which had been paid on the mortgage in question, that is, as being “evidence that only the indebtedness expressly named is secured.” As applied to the Bain mortgage, since that tax was paid only upon the $7,500.00 (the amount of the debt referred to in the consideration clause), the Court held that this was evidence only that the notes of Grizzell and Bessie Bain were not at that time treated as debts owing by W. N. Bain. Indeed, they could not have been so treated because they did not become his debts until several years later when he “took them up” by giving his own notes and thereby making himself primary obligor upon them. But considering the payment of the recording tax as such evidence, the Court continued, “does not warrant the striking out the express terms of the mortgage securing any and all debts owing by W. N. Bain before full payment of the mortgage” (emphasis added).

Describing the stipulation, that a mortgage shall secure future debts of the mortgagor, as contractual, this Court held further that those contractual terms could not be varied or contradicted by parol evidence. Id., 231 Ala. at 584, 188 So. 64; Regional Agricultural Credit Corp. v. Hendley, 251 Ala. 261, 37 So.2d 97 (1948).

Turning now to the facts of this case we find that in addition to the “consideration clause” previously quoted, this mortgage contains a “defeasance clause” which recites:

Upon condition, however, that if said note shall be paid in full according to its tenor, together with all costs, this conveyance shall become null and void,

(emphasis added)

Keeping in view the necessity of construing the “consideration clause” and the “de-feasance clause” together in order to discern the clear and explicit intent to cover other debts in the one mortgage, we are aided by the decision in Malkove v. First National Bank of Mobile, 295 Ala. 191, 326 So.2d 108 (1976). In that case the consideration clause was

[i]n order to secure the repayment of all amounts heretofore, herewith or hereafter owed by mortgagor to mortgagee, at anytime before actual cancellation of this instrument . . .

while the defeasance clause provided that

[i]f the mortgagor shall well and truly pay to the mortgagee the said sum of $3,500.00 with interest .

These clauses bear substantial similarities to those contained in the 1962 mortgage given to Sybil by the Jarvises. The only distinction in the defeasance clauses is that the Jarvis mortgage used the terms “said note,” while the mortgage in the Malkove case stated “the said sum of $3,500.00,” which sum was the amount of the note. This distinction is without any real difference. The point to be made in comparing the terms of the two clauses, however, is that, construing them together, they do not show a clear and explicit intent that the other debts are to be included in the security provided by the mortgage. That was the conclusion reached by this Court in Malkove when this same issue was before it. The defeasance clause here makes it questionable whether Sybil and the Jarvises entertained such an intention, especially when, following Bain, we consider that the purpose of the defeasance clause was to identify the terms and conditions on which the mortgage was to cease being a security. If an intent had existed to effect such a result only upon the payment of all other loans and advances, as the Bain mortgage did, it would have been an easy matter of draftsmanship to accomplish that aim. Then there would have been no need for additional mortgages.

Accordingly, we cannot agree with the appellant’s contention that “there was no evidence of the parties’ intentions other than the clear and explicit documentary evidence,” which we take to mean the “consideration clause” contained in the 1962 mortgage. Such a position overlooks the effect of the “defeasance clause” upon those terms.

Nor was it improper for the trial court to consider the amount paid in recording tax as evidence of the parties’ intentions. The mortgage instrument which disclosed that payment was introduced as a plaintiff’s exhibit without objection and was entitled to be considered by the trial court ore tenus according to its effect upon the issues, including the intention of the parties relative to the obligations to be covered. He had the responsibility of deciding which evidence was correct and which inferences were to be drawn from that evidence. Air Movers of America, Inc. v. State National Bank of Alabama, 293 Ala. 312, 302 So.2d 517 (1974). Under this evidence we cannot hold that the trial court was palpably wrong, and thus his conclusions on that point will not be disturbed. Goodall v. Ponderosa Estates, Inc., 337 So.2d 726 (Ala.1976).

We reach a different conclusion, however, on the counterclaim plaintiff’s petition for an accounting.

The appellant maintains that he had petitioned the trial court originally for an accounting to determine the amounts of money due to the estate of Sybil J. Underwood from Malcolm Jarvis. The record bears out that contention, for after alleging the indebtednesses we have referred to earlier, the appellant’s complaint added:

10. Counterclaim Plaintiff represents and avers upon information and belief that said Malcolm Jarvis has paid none of the amounts which were borrowed by the Counterclaim Defendant from said Sybil J. Underwood, and that there are substantial sums due to the said Counterclaim Plaintiff.
11. Upon information and belief, Counterclaim Plaintiff represents and avers that, upon the request of the Counterclaim Defendant, the said Sybil J. Underwood loaned divers amounts of money at divers dates to Counterclaim Defendant, which amounts and dates are unknown to Counterclaim Plaintiff, and have not been repaid. Counterclaim Plaintiff represents and avers that Counterclaim Defendant should be required by this Court to account to the Counterclaim Plaintiff for such sums of money and to repay the same.

Based upon these allegations, appellant contends now that the trial court erred when it did not render a decree granting an accounting which would have included the sums of money due to Sybil from Malcolm under their agreement of January 26, 1959, which follows:

WHEREAS, Sybil J. Underwood has made loans to Malcolm Jarvis as follows: (1) $2700.00 on February 8, 1956; (2) $4500.00 in March, 1958; and, (3) $1,000.00 in February, 1958; and WHEREAS, Sybil J. Underwood has also pledged the sum of $7,000.00 of a savings account at the Valley National Bank, Lanett, Alabama, as a security for a loan of the said Malcolm Jarvis; and WHEREAS, Sybil J. Underwood has this day borrowed the sum of SIXTEEN THOUSAND AND NO/100THS DOLLARS ($16,000.00) from Guaranty Savings Life Insurance Company, the same being secured by a mortgage on certain real property owned by said Sybil J. Underwood, and the proceeds of said loan, to-wit, the sum of SIXTEEN THOUSAND AND NO/100THS DOLLARS ($16,000.00), having been turned over and loaned by the said Sybil J. Underwood to the said Malcolm Jarvis; and WHEREAS, said SIXTEEN THOUSAND AND NO/100THS DOLLARS ($16,000.00) loan from Guaranty Savings Life Insurance Company is payable in 120 monthly installments of $177.76 each, and, the said Malcolm Jarvis has agreed to pay and discharge the said payments as the same become due and payable.

Under the terms of that agreement, appellant contends, Malcolm Jarvis acknowledged his indebtedness to Sybil for certain sums, and that in the hearing below Malcolm neither diminished nor disputed this acknowledged indebtedness. Under these pleadings and this evidence, appellant insists, it was error not to grant an accounting for those unpaid sums.

In response to this contention, the appel-lees insist that the trial court was correct because the appellant had an adequate remedy at law, citing Burns v. Willis, 265 Ala. 497, 92 So.2d 38 (1957).

It is true that the Burns ’ decision denied equitable relief by way of an accounting when it was not shown by the bill of complaint and its supporting proof that no adequate remedy existed at law. The absence of such an adequate remedy would have been established, under the Burns’ case, by proof of mutual accounts, or complicated accounts difficult to adjust, or the existence of a fiduciary relationship between the parties. That decision was rendered, however, before the Alabama Rules of Civil Procedure began to govern civil trial practice (July 3, 1973), and hence can have no controlling influence in the present counterclaim which was filed on May 11, 1976. Under those rules we now have an integrated procedural system, Rule 1, under which there is only one form of action, Rule 2, which allows a party to allege in the same complaint as many separate claims, “legal” or “equitable” as he has regardless of consistency. Rule 8(e)(2). The same liberality is permitted in counterclaim pleading, Rule 13(b) (permissive counterclaims), (h) (joinder of additional parties). As the comments to Rule 13 observe: Accordingly, under the present procedure it is no longer a valid objection that a particular claim alleged is improperly before the court because it can be remedied on the “law side.” The trial court nowadays “wears only one hat.”

In general, the scheme of the rule is that any claim whatever which any party has against any opposing party may be asserted as a counterclaim. . . . It is immaterial whether the counterclaim is legal or equitable ... or even whether it has any connection whatever with the plaintiff’s claim .

Under the evidence adduced from Malcolm Jarvis, it is clear that the trial court committed a palpable error in denying the claim for an accounting for sums allegedly due under the 1969 agreement. Jarvis admitted executing it, and stated that he could not prove that he had paid the debts to which that agreement refers. His other testimony does not disclose any such payments. The record does reveal a number of financial transactions between Malcolm and Sybil involving businesses operated by them jointly, and a number of cancelled checks drawn by Sybil which, appellant contends, were executed on Malcolm’s behalf. Taken together, all of this evidence supported the appellant’s claim for an accounting, and therefore the trial court erred when it did not grant that relief. Thus the judgment must be reversed for further proceedings not inconsistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

MADDOX, JONES, SHORES and EM-BRY, JJ., concur.


author: WRIGHT, Presiding Judge. HOLMES, Judge

text:
    NATIONAL SECURITY FIRE AND CASUALTY COMPANY, a corporation v. Richard Lee JAMES.
    Civ. 1296.
    Court of Civil Appeals of Alabama.
    Feb. 15, 1978.
    Rehearing Denied March 22, 1978.

      M. Dale Marsh and Joe C. Cassady, of Cassady, Fuller & Marsh, Enterprise, for appellant.
    G. A. Lindsey, Elba, for appellee.
   WRIGHT, Presiding Judge.

Defendant appeals from the denial of his motion for á directed verdict and a motion for judgment notwithstanding the verdict. We reverse.

Plaintiff brought suit upon a fire insurance policy. As a defense the defendant claimed the policy void under a provision contained therein as follows:

“Unless otherwise provided in writing added hereto this company shall not be liable for loss occurring (b) while a described building, whether intended for occupancy by owner or tenant is vacant or unoccupied beyond a period of sixty consecutive days.”

The building described in the policy was a “dwelling, tenant occupied.”

The only witness presented at trial was the insured. His testimony was that he purchased the insured property from his grandmother who originally purchased the policy. Upon her death, he had the policy endorsed to himself. The property was last lived in by another grandmother, who subsequently moved across the street. For some ten months prior to the fire on August 23, 1974, the insured property had been used by the insured and his father as a storage place for materials being used to remodel the house across the street, for storing furniture during the remodeling and for storing unused furniture and parts belonging to the insured. All utilities had been disconnected at the time his grandmother moved out in October, 1973. There was no stove or refrigerator in the house. No one had slept in the house since the grandmother moved. Perhaps his children had slept there a night or two at some time that he did not recall. He lived next door and was often in the house in relation to its use for storage. A few days prior to the fire, most of the stored furniture had been removed to the remodeled house across the street. At the time of the fire there remained in the house some beds, dishes and other things packed up in boxes.

At the close of plaintiff’s case, defendant moved for directed verdict on the ground that the evidence showed that the house was unoccupied for more than 60 days prior to the fire. The motion was denied and the case was submitted to the jury. Verdict was for plaintiff with damages assessed at $5,000 with interest.

The issue presented is whether in view of the evidence, the court correctly denied defendant’s motion for directed verdict.

Provisions in a fire insurance policy on a dwelling suspending coverage if the dwelling becomes vacant or unoccupied beyond a period of sixty days is a valid condition. Trinity Universal Ins. Co. v. Wills, 273 Ala. 648, 143 So.2d 846 (1962). The meaning of terms “vacant” or “unoccupied” in the policy is a question of law for the court. Whether at the time of the fire the dwelling is “vacant or unoccupied” as those conditions are defined by the court is a question of fact for the jury. Continental Ins. Co. v. Dunning, 249 Ky. 234, 60 S.W.2d 577 (1933). However, if the evidence and its strongest tendencies when viewed most favorably for the plaintiff falls short of raising a reasonable inference toward fulfilling the definition given by the court, defendant’s motion for directed verdict should be given. Coburn v. American Liberty Ins. Co., 341 So.2d 717 (Ala.1977).

We consider that the trial court correctly defined “vacant” and “unoccupied” in relation, to a dwelling as those terms are commonly accepted in the insurance industry and by the general public. Those definitions are: “vacant” means empty, without inanimate objects, containing nothing. “Unoccupied” means without occupants, animate objects; a dwelling is unoccupied when it has ceased to be used as a place of abode or residence by people. 47 A.L.R.3d 398; 43 Am.Jur.2d “Insurance”, §§ 947, 955. 29 Words & Phrases, “occupancy,” “occupied dwelling.” Our careful consideration of the testimony of the insured plaintiff himself requires the legal conclusion that the insured property was “unoccupied” at the time of the fire and had been “unoccupied” as a dwelling for some ten months prior to the fire. Whether the evidence, with all reasonable inferences possible to be drawn therefrom, fails to present a question of fact for the consideration of the jury is a question of law for the reviewing court upon appeal from denial of a motion for directed verdict. Delchamps, Inc. v. Stewart, 47 Ala.App. 406, 255 So.2d 586, cert, denied, 287 Ala. 729, 255 So.2d 592 (1971).

REVERSED AND REMANDED.

BRADLEY J., concurs.

HOLMES, J., dissents.

HOLMES, Judge

(dissenting).

I respectfully dissent. To say this an extremely difficult and “close” case would be an understatement.

In any event, my view of the evidence in pertinent part reveals the following:

Plaintiff was the only witness in the case. He testified that the house in question had been the home of his grandmother, who moved out of it in October, 1973, about ten months prior to the fire. Electricity and water were cut off at that time. Plaintiff’s home was about thirty feet from the insured premises and they were separated by a driveway. The house was used for storage of various items, and all types of furniture were kept there while the new home of the grandmother was being remodeled. No one lived in the house during this period but plaintiff was in and out of the house “as much as three times a week” and “sometimes every day.” Several times plaintiff’s children spent the night there but he could not remember the dates.

At the outset, I note that in dealing with a contract of insurance, it is to be construed most strongly against the party who framed it. Tyler v. Insurance Co. of North America, Ala., 331 So.2d 641 (1976). I would further note that, to me, there is no question but the insured building is in fact a dwelling; the only question is whether the dwelling is occupied or unoccupied.

Whether at the time of the fire, the dwelling, in this instance was “unoccupied” as those conditions are defined by the court, is to me a question of fact for the jury. See Continental Ins. Co. v. Dunning, 249 Ky. 234, 60 S.W.2d 577 (1933).

One may occupy premises and yet those premises may not be his place of abode. See Bledsoe v. Farm Bureau Mut. Ins. Co., 341 S.W.2d 626 (Mo.App.1960).

For a case analogous to the instant appeal, see Burrell v. Seguros America Banamex, S. A., 316 So.2d 177 (La.App.), cert. denied, 320 So.2d 561 (La.1975).

The above cases, to me, reveal that the facts of this appeal present a question of fact for the trier of fact to resolve. The jury resolved the matter in favor of the plaintiff and we should not substitute our judgment for theirs.

If the insurance company desired a more restrictive clause than that expressed in the policy relating to occupied versus unoccupied, the policy should have been so phrased. Drummond v. Hartford Fire Ins. Co., 343 S.W.2d 84 (Mo.App.1960); Limbaugh v. Columbia Ins. Co. of New York, 368 S.W.2d 921 (Mo.App.1963).

I would affirm the verdict of the jury and the judgment of the trial court.


text:
    Ex parte Richard Lee JAMES.
    77-439.
    Supreme Court of Alabama.
    May 26, 1978.
   BEATTY, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.


author: HOLMES, Judge.

text:
    James E. NERO and Samuel V. Nero, d/b/a Nero Construction Company v. Mack M. CHASTANG and Thomas H. Brown.
    Civ. 1255.
    Court of Civil Appeals of Alabama.
    March 8, 1978.
    Rehearing Denied April 5, 1978.

      Irvin Grodsky, Mobile, for appellants.
    W. Kenneth Gibson of Taylor, Benton & Irby, Fairhope, for appellees.
   HOLMES, Judge.

The Circuit Court of Mobile County granted the appellees’ motion to dismiss the appellants’ complaint. That order was apparently based upon the parties’ compliance with the provisions of a prior settlement agreement. The appellant-plaintiffs appeal, contending the settlement agreement did not resolve all the issues presented in the proceeding and thus the court erred in granting the motion to dismiss.

The pertinent facts reveal the following:

The plaintiff-appellants and the defendant-appellees formed a joint venture to construct an all-purpose building for the Martin Luther Evangelical Lutheran Church. The plaintiffs filed a complaint seeking to determine what member(s) of the joint venture was authorized to receive payments from the church for work performed under the construction contract. The church then filed a pleading seeking to interplead the monies due and to require the plaintiffs and defendants to settle between themselves their rights to the monies due by the church.

Thereafter, the defendants filed their answer and counterclaim to the plaintiffs’ complaint, praying for the following relief:

“1. Ascertaining the unpaid amounts of money due from MARTIN LUTHER EVANGELICAL LUTHERAN CHURCH, a religious corporation, to plaintiffs and defendants, THOMAS H. BROWN and MACK M. CHASTANG, and ordering the unpaid balance of said monies paid into Court.
“2. Ordering the plaintiff, SAMUEL V. NERO, and the defendants, THOMAS H. BROWN and MACK M. CHASTANG, to execute a check paying all the balance of their joint checking account, specifically set up for this matter, into Court.
“3. Ordering a full accounting of all items of receipt and expenditure in the construction of the multi-purpose building of the MARTIN LUTHER EVANGELICAL LUTHERAN CHURCH.
“4. Ordering all unpaid invoices and expenses properly incurred for the construction of the multi-purpose building or the MARTIN LUTHER EVANGELICAL LUTHERAN CHURCH to be paid from the monies paid into Court.
“5. Ascertaining the profit from this venture and ordering appropriate payment to each of the parties.
“6. Ascertaining and awarding a reasonable attorney’s fee for the attorneys for defendants and cross-claimants, THOMAS H. BROWN and MACK M. CHASTANG.”

Basically, these subsequent pleadings converted the case into one for an accounting of the joint venture account and a claim for division of profits or losses, whichever was appropriate.

In September, 1976, a settlement agreement was reached by the parties and read into the record. Pertinent parts of the agreement are set out as follows:

“MR. TAYLOR: Your Honor, if I may, with Mr. Figures’ permission, I will attempt to give Your Honor a close approximation of figures. There is approximately $31,000.00 due under the contract with the Church to Nero Construction Company whom Mr. Figures represents. At this point in time, under the contract the Church is due to pay in $24,051.00 toward the balance due on the contract, and they are prepared to pay that over today.
“THE COURT: Over to whom, Mr. Taylor?
“MR. TAYLOR: Under the terms of our agreement, we are prepared to pay it over jointly to Mr. Nero, Mr. Brown, and Mr. Chastang; and Mr. Brown, Mr. Chastang, and Mr. Nero have agreed to jointly execute checks to pay the subcontractors which we’ve agreed on 83% of the total owed them out of the $24,-000.00, after the payment of Mr. Kim-brough’s $500.00 attorney fee. Then when Mr. Nero completes the contract with the Church, the Church is in a position to pay over the balance remaining under the contract, which is roughly $7,000.00, which would be paid on the same basis — jointly to Mr. Nero, Mr. Brown, and Mr. Chastang, and they would at that time then pay the balance remaining due to all the subcontractors in full; and if for some reason the $7,000.00 were not paid in full, they would be obligated — one-third, one-third, one-third — to make up the difference to see that the job was paid in full in order to obtain proper releases of liens against the construction project. In the event there is an excess in the $7,000.00, it would be paid jointly — one-third, one-third, one-third — to Mr. Brown, Mr. Chastang and Mr. Nero, if my understanding is correct.
“THE COURT: All right. Now that’s your understanding of the whole agreement. Is that your understanding?
“MR. KIMBROUGH: Yes, sir.
“THE COURT: Is that your understanding?
“MR. FIGURES: Yes, sir.”

In December of 1976, pursuant to the above settlement agreement, the trial court entered a judgment concerning the final payment to be made by the church.

“It is therefore ORDERED, ADJUDGED and DECREED that the following relief be and the same is hereby granted:
“1. The Defendant, Counter Claimant and Cross Claimant, Martin Luther Evangelical Lutheran Church, is hereby ordered to pay to the account of Samuel Nero, Thomas J. Brown and Mack M. Chastang the sum of $7,354.00 and upon the payment of the same the said Defendant, Counter Claimant and Cross Claimant shall be and is hereby dismissed from this action.
“2. The said Plaintiff, Nero Construction Company, and the Defendants, Defendants to the Counterclaim and cross-claim, Defendants and Counter Claimants, Thomas H. Brown and Mack M. Chastang are ordered to execute such checks from the joint-venture checking account as are necessary to pay off the remaining sub-contractors and material-man to whom balances are due in accordance with the Stipulation of September 9, 1976, in this matter.
“3. To retain the balance in the approximate amount of $2,400.00 in the joint venture checking account pending a final determination by the Court of the disposition of said balance and of the future relations between the parties themselves.’’ [Emphasis supplied.]

In June of 1977, the defendants filed a motion to dismiss, stating that there was nothing under the settlement agreement left to be determined by the court and therefore the relief sought by the pleadings had been satisfied. On June 9, 1977, the court granted the motion and therefore the complaint, cross claims, and counterclaims were dismissed.

The next day, through a different attorney, plaintiff-Samuel Nero filed an amendment to his original complaint, setting forth a second cause of action. The plaintiff alleged that the defendants had agreed to pay him $1,000 per month for a maximum of four months to supervise the construetion of the all-purpose building. The plaintiff further alleged that the defendants had failed to pay their portion of the costs and expenses arising from the construction. A motion to reconsider the court’s order granting the motion to dismiss was also filed by the plaintiff.

The court, after considering the complaint, stipulation, and amended complaint, denied the plaintiffs’ motion to reconsider. This also had the effect of dismissing plaintiff-Samuel Nero’s amended complaint which set forth his claim for supervision fee. The plaintiffs appeal.

The dispositive issue on this appeal is whether the settlement agreement resolved all the issues presented by the pleadings. If so, the trial court did not err in granting the defendant’s motion to dismiss.

The law in Alabama is clear in that agreements made in settlement of litigation are as binding on parties thereto as any other contract. See Brocato v. Brocato, Ala., 332 So.2d 722 (1976). A settlement agreement once entered into cannot be repudiated by either party and will be summarily enforced. See Cia Anon Venezolana De Navegacion v. Harris, 374 F.2d 33 (5th Cir. 1967).

When parties who are sui juris make a final settlement between themselves, such settlement is as binding on them in many respects as a decree of the court. However, such settlement may be opened for fraud, accident, or mistake. See Burks v. Parker, 192 Ala. 250, 68 So. 271 (1915).

In the present case, appellant has not raised any issue concerning fraud, accident, or mistake. Therefore, the settlement agreement is binding upon the appellant and cannot be repudiated.

A valid compromise agreement is conclusive only as to those matters which the parties have fairly intended to include within its terms. It does not ordinarily include claims not known at the time of, or arising after, the settlement. Thus, a settlement of a claim is conclusive of all elements of the claim except those specifically reserved by the parties. See Southern Ry. Co. v. Louisville & N. R. Co., 241 Ala. 691, 4 So.2d 400 (1941); 15A C.J.S. Compromise and Settlement § 27.

It is clear to this court that the parties to the settlement agreement were fully cognizant of the issues raised by the pleadings. There were no claims which arose after the settlement was entered into. The record and the briefs both indicate that a full accounting was intended.

Specifically, the pleadings, as noted above, requested a determination of the monies which had become due from the church; how the expenses, were to be paid; and how the profits were to be ascertained and appropriately divided. Clearly, the parties intended to resolve all aspects of the joint venture and to create a “clean slate” between the parties. This is noted in the trial court’s order of December, 1976, as set out above, which succinctly stated that a final determination of the future relations between the parties would take place prior to the joint venture’s checking account termination.

At no time during the pleadings or settlement was the issue of the appellant’s supervision fee reserved or excepted from the issues presented. Therefore, the court could well have found that the settlement agreement embodied all the issues presented by the pleadings. See Southern Ry. Co. v. Louisville & N. R. Co., supra; 15A C.J.S. Compromise and Settlement, supra; 15A Am.Jur.2d Compromise & Settlement §§ 23-25.

When the provisions of the settlement agreement were fulfilled, the trial court then could properly dismiss the complaint since the settlement agreement was intended to resolve all the issues between the parties. There being no allegations of fraud, mistake, or accident, the trial court did not err in granting defendant’s motion to dismiss. In view of the above, this cause is due to be and is affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: MADDOX, Justice.

text:
    Ex parte James E. NERO et al.
    77-469.
    Supreme Court of Alabama.
    May 26, 1978.
   MADDOX, Justice.

WRIT DENIED.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.


author: BRADLEY, Judge.

text:
    In re Emily Patricia BRADY v. Richard William BRADY. Ex parte Richard William BRADY.
    Civ. 1320.
    Court of Civil Appeals of Alabama.
    March 8, 1978.
    Rehearing Denied April 12, 1978.
    Michael A. Newsom, Birmingham, for petitioner.
    William N. Clark for Rogers, Howard Redden & Mills, Birmingham, for Emily P. Brady, respondent.
   BRADLEY, Judge.

Richard William Brady has filed a petition for writ of certiorari seeking review of a judgment by the Circuit Court of Jefferson County, Birmingham Division. Brady contends that he is entitled to relief from a judgment which held him in contempt of court for failure to pay alimony and child support as previously ordered by the circuit court.

Petitioner-Brady avers that on July 28, 1977 he was ordered to show cause as to why he should not be held in contempt for his failure to pay alimony and child support during the months of June, July and August of 1977. The amount of arrearage on these payments was $825 or $275 per month. A hearing was had on the rule nisi on August 17, 1977 and the court subsequently issued an order holding petitioner in contempt for his failure to pay alimony and child support as had been previously ordered. Petitioner was sentenced to the Jefferson County jail until such time as the amounts in arrears were paid. Sentence was suspended after petitioner filed a su-persedeas bond pending this review.

At the hearing on the rule nisi there was no court reporter present to record the proceedings. Consequently a record of the testimony of the witnesses was prepared pursuant to Rule 10(d) of the Alabama Rules of Appellate Procedure and this 10(d) summary was made a part of the record in this proceeding.

Respondent (petitioner’s former wife) argues that this court should not consider the 10(d) summary in our review of this matter because petitioner could have had a verbatim transcript of the testimony made by a court reporter and attached to the record. In the absence of such a verbatim transcript, respondent contends that this court has no alternative but to affirm the judgment of the trial court.

Petitioner replies that he did not ask for the services of a court reporter on the advice of his attorney. His attorney asserted in brief that he did not think that the proceedings warranted the cost involved because he did not believe his client to be in contempt of court.

Rule 10(d), ARAP, provides in pertinent part that:

“If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means source, including his recollection. . . . ”

Rule 10(d) clearly provides that if no transcript of the proceedings of a hearing is made then its provisions may be utilized. Moreover, Rule 10(d) does not contain any language which could be construed to limit the circumstances under which the rule may be employed. In the instant case there was no verbatim transcription of the proceedings and the cost of such a transcription might certainly have been a significant consideration for a person who was being tried for contempt of court on the grounds that he had failed to pay alimony and child support — particularly in an instance such as this where a party claims he does not have the means to meet the support payments. We therefore conclude that Rule 10(d) was properly utilized in the instant case.

As to the merits of this controversy, petitioner claims that he did not pay the alimony and child support in question because he was financially unable to do so, and he asserts that the evidence in the record supports this statement. Respondent replies by saying that the evidence does not support such a conclusion.

The 10(d) summary contained the following evidence. Emily Patricia Brady (respondent) was divorced from Richard William Brady (petitioner) in October of 1976. Under the terms of an agreement entered into pursuant to this divorce, Mr. Brady was to pay Mrs. Brady $225 a month for the support of their minor son and another $50 a month as alimony. Mrs. Brady testified that until June of 1977 her former husband regularly made the payments agreed upon. However, she said that she had received no child support or alimony payments for the months of June, July and August of 1977.

At the time of the hearing in question Mrs. Brady and her young son resided at her parents’ home in Birmingham. She receives monthly payments in the sum of $305 a month from social security as a result of a congenital heart defect which has rendered her permanently disabled. Her only other income was apparently that which she received from Mr. Brady in the form of alimony and child support. A portion of her total income is used to reimburse her parents for the food and lodging which they provide for Mrs. Brady and her child. The rest of the money is used to pay the salary of a female attendant who assists Mrs. Brady in her personal activities and in the care of her child. Mrs. Brady testified that she had engaged an attendant to aid her on the orders of her personal physician.

The testimony of Richard William Brady reveals that he was employed at a hospital pharmacy at the time of the parties’ divorce. In addition to his employment, he was a pharmacy student at the Samford University School of Pharmacy in Birmingham, Alabama. However, on May 31, 1977 his employment as a pharmaceutical extern at Baptist Medical Center was involuntarily terminated. After losing his job. Mr. Brady began efforts to obtain another pharmacy-related position but at the time of the hearing in question he had not been successful in finding new employment.

Nonetheless, Mr. Brady remained in school during the period of his unemployment. He stated that he maintained his status as a student in order not to delay for another full year his scheduled graduation of May 1978. Moreover, he testified that if he had not stayed in school, he would have been required to pay a substantial amount of money as a result of the terms of various student loans which he had obtained to finance his education. He said that these loans become due and payable upon cessation of active student status.

Despite his continued enrollment in pharmaceutical school, Mr. Brady noted that his GI educational benefits were exhausted by May of 1977 and as a consequence they were discontinued the following month. Mr. Brady said that he informed his former wife of this occurrence and of the fact that he had lost his job. She did not dispute his testimony on this matter, admitting that she was aware of both these events.

Additional testimony by Mr. Brady was to the effect that he had remained in the apartment formerly occupied by him and his wife and that the monthly rent for this apartment was $175. He stated that there was no furniture in the apartment except a desk, a chair and a lamp which he used for studying. Indeed, the furnishings of his residence were so sparse that Mr. Brady testified that he had to sleep on the floor because there was no bed or mattress. Moreover, he pointed out that under the divorce decree which terminated the parties’ marriage he was required to pay any outstanding bills or indebtedness which existed prior to the couple’s divorce and that a number of these debts had remained unpaid. In addition to these unpaid bills, Brady had purchased a 1976 Ford automobile subsequent to the divorce and the payments on this car were $160 a month. Finally, Mr. Brady contended that he could not meet his various financial obligations, stating that his telephone service had been terminated due to the non-payment of his monthly telephone utility bill.

On the other hand, the 10(d) summary does disclose some testimony that Mr. Brady made an effort to pay at least a part of the amount due on the obligations which he incurred as a result of his divorce. He stated that in May of 1977 he applied for and was granted a $500 loan on an unsecured personal note. He testified that he used a portion of the proceeds from this loan to pay his wife the June installment of the alimony and child support. He also said that he personally delivered this money to Mrs. Brady. This testimony was of course contrary to Mrs. Brady’s earlier statements that she had not received any support payments from her former husband for the months of June, July and August of 1977. Nonetheless, Mr. Brady testified that two weeks prior to the hearing on the rule nisi he obtained $500 from his parents. The record is silent as to the disposition of this $500.

On the basis of the evidence set out above the judgment of the trial court must be affirmed. We said in Gwin v. Gwin, 55 Ala.App. 601, 318 So.2d 299 (1975) that:

“When the husband has the means to pay alimony but willfully and contemptuously refuses to do so, he may be compelled through the use of contempt proceedings to pay. Ryan v. Ryan, 267 Ala. 677, 104 So.2d 700. But, the lack of ability to pay is a complete defense. Ex parte Stephenson, 252 Ala. 316, 40 So.2d 716.”

However, in deciding whether the husband has or does not have the means to pay the alimony and child support previously ordered to be paid, this court can only look to see if there is any legal evidence to support the trial court’s judgment. This is so for the reason that the basis of review here is by the writ of certiorari. Lovelady v. Lovelady, 281 Ala. 642, 206 So.2d 886 (1968); Phelps v. Public Service Commission, 46 Ala.App. 13, 237 So.2d 499 (1970). Of course, in the absence of any evidence or insufficient evidence, this court can set aside the trial court’s decree. But we do not believe that the latter situation exists in the instant case.

The evidence is undisputed that petitioner paid the $275 per month to his ex-wife during the time he was working. It was only after he lost his job on May 31, 1977 and was notified of the termination of his veteran’s educational benefits that he stopped making the payments to his former wife. Moreover, the June 1977 payment is in dispute. Petitioner says that he borrowed $500 on a ninety-day note in May 1977 and that he paid his ex-wife the $275 June installment out of that sum. His ex-wife denies receiving this money. Petitioner readily admits not making the July and August payments. His excuse is that he had no job and was not receiving any GI benefits. He testified that he had attempted to obtain new employment but that his efforts had been unsuccessful.

The petitioner admitted that he owned a 1976 Ford automobile on which the monthly payments were $160. However, he did not say whether this payment was in arrears. In addition, the apartment where he was living required a payment of $175 per month. But again petitioner did not say whether this indebtedness was in arrears. He did testify that he had no furniture in his apartment except a desk and chair and that his telephone had been disconnected because the monthly telephone bill had not been paid.

It was also shown that approximately two weeks prior to the hearing on the contempt citation petitioner received $500 from his parents. Despite this fact there is no evidence in the record which discloses how this money was spent. Nor is there any evidence of the existence or non-existence of bank accounts held by petitioner. Likewise, there is no evidence of the availability or absence of other sources of income which could be used by petitioner to meet his support payments. And the record is silent (except in regard to the telephone bill) on whether petitioner paid his bills during the period in question. In fact, there is no evidence on how petitioner lived or maintained himself from June of 1977 to the date of the hearing.

It did appear from the record that petitioner had outstanding some $20,000 in student loans.

Upon consideration of the evidence set out in the record and the inferences that the trial court could have drawn from it, we cannot say that the trial court erred in holding petitioner in contempt; therefore, we affirm the trial court’s judgment.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.

      . In the Jefferson County Circuit Court, Civil and Equity Divisions, court reporters attend only at the request of one or both parties and the requesting party pays for the reporter’s services.


author: SHORES, Justice.

text:
    Ex parte Richard William BRADY.
    77-483.
    Supreme Court of Alabama.
    May 26, 1978.
   SHORES, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


author: WRIGHT, Presiding Judge.

text:
    Phedorah B. TRAMMELL and Sharon K. Trammell v. John Reynolds MOSES and Joe F. Moses.
    Civ. 1289, 1290.
    Court of Civil Appeals of Alabama.
    May 10, 1978.

      John T. Kirk of Kirk & Hutchinson, Montgomery, for appellants.
    Robert C. Black of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for ap-pellees.
   WRIGHT, Presiding Judge.

This is an appeal from the denial of a motion for a new trial in an action for damages arising from an automobile accident. We affirm.

Our review of the record shows this to be a usual automobile collision case in which the testimony as to how the accident occurred is in sharp conflict. We see no benefit in relating the conflicting evidence.

Suits were filed by the driver of the automobile and by her daughter who was a passenger. The cases were consolidated for trial. They are consolidated on appeal. The jury returned a verdict in favor of defendant in the case of the mother-driver. Verdict was returned in favor of the daughter and her damages assessed at $850.

There are two issues stated on appeal. The first issue, though stated on behalf of both plaintiffs, can only be applied to the case of the driver. The issue stated is that a new trial should have been granted because the verdict was contrary to the preponderance of the evidence. The argument in brief and orally before the court was addressed to the matter of liability, contributory negligence and subsequent negligence.

The daughter, having received a verdict at the hands of the jury could have no right to a new trial on the basis of those matters. On appeal by the winning party, the court does not consider any ruling or action of the trial court bearing on the liability of the losing party not affecting the amount of damages. Anderson v. Kemp, 279 Ala. 321, 184 So.2d 832 (1966); King v. Sturgis, 45 Ala.App. 553, 233 So.2d 495 (1970). Therefore, issue number one is considered only in relation to the appeal of the driver.

In view of the verdict in favor of plaintiff-passenger, it must be concluded that the jury determined defendant guilty of negligence. In view of the verdict in favor of defendant and against plaintiff-driver, it must be concluded that the jury found the driver to have been contributorily negligent. Therefore, the question available to plaintiff-driver is whether there is evidence to support the plea of contributory negligence.

There was evidence that plaintiff-driver changed lanes without warning as defendant prepared to pass and that defendant collided with rear of plaintiff’s automobile. This evidence was sufficient for the jury to have determined plaintiff guilty of contributory negligence and render a verdict for defendant. In such a case, judgment refusing a new trial will not be reversed. Donald v. Matheny, 276 Ala. 52, 158 So.2d 909 (1963). The correctness of the verdict is strengthened by the denial of a motion for new trial. Prescott v. Martin, 331 So.2d 240 (Ala.1976).

The second issue presented is stated in brief as follows:

“Whether or not the court erred in failing to grant plaintiff’s motion for new trial based upon the jury’s verdict being inadequate, unjust and wrong and against the totality of facts upon consideration of contributory negligence and last clear chance doctrines.”

We are candid in saying that there appears more than one issue in this statement. It appears to charge that the verdict in favor of plaintiff-passenger was inadequate and unjust. However, we are unable to discern how the consideration of contributory negligence and last clear chance doctrines affected the amount of the verdict in favor of the plaintiff. Had those doctrines been considered at all by the jury as applicable to the plaintiff-passenger’s case, it would have been contrary to the charge of the court and the verdict would not have been in favor of the plaintiff. The argument in brief on this issue is as to the issue of liability and such argument is not appropriate to the issue of adequacy of damages. Anderson v. Kemp, supra.

We find no support for the issues presented in fact nor in the law. We therefore find no error below.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Alex SMITH, Giles Lovett, Garfield Washington, Alfred Nickerson, Amos Conner, George Everett, Anderson Stevens, Otis McClain and James Stevens, Sr. v. George DIXON, as representative of Local 1410 of the International Longshoremen’s Association, an unincorporated association; and Local 1410 of the International Longshoremen’s Association, an unincorporated association.
    Civ. 1325.
    Court of Civil Appeals of Alabama.
    May 10, 1978.
    Wilson M. Hawkins, Jr., Mobile, for appellants.
    Michael A. Figures of Crawford, Black-sher, Figures & Brown, Mobile, for appellees.
   BRADLEY, Judge.

This appeal results from an order by the Circuit Court of Mobile County granting defendants-appellees’ motion for summary judgment pursuant to Rule 56(c), Alabama Rules of Civil Procedure.

The dispute out of which this appeal arose began in February of 1975 when the defendant (Local 1410 of the International Longshoremen’s Association) notified its union membership, including the plaintiffs (Alex Smith, Giles Lovett, Garfield Washington, Alfred Nickerson, Amos Conner, George Everett, Anderson Stevens, Otis McClain and James Stevens, Sr.) that they were no longer entitled to receive payments from Local 1410’s pension fund. The basis of defendant’s action was that the continuation of pension payments would violate a new pension reform act which the union had promulgated.

The plaintiffs were notified of the defendant’s action by a letter dated February 19, 1975 and signed by the secretary-treasurer of Local 1410. In April of the same year the plaintiffs filed a complaint in the Circuit Court of Mobile County against Local 1410. However, the plaintiffs’ cause of action was subsequently dismissed without prejudice on the ground that the plaintiffs had failed to exhaust their internal union appeal process.

Almost two years after the filing of their initial suit, on March 16,1977, the plaintiffs brought a class action against the defendants, Local 1410 and its president, George Dixon. On April 26, 1977 the defendants filed a motion to dismiss the plaintiffs’ suit. Thereafter the plaintiffs requested that the Mobile County Circuit Court provide them with class action treatment. However, on July 27, 1977, in an affidavit attached to defendants’ motion to deny plaintiffs’ request for class action treatment, the secretary-treasurer of ILA Local 1410 stated that he had examined union records and determined that the potential class members had not filed an appeal through the grievance procedure provided by the constitution and bylaws of ILA Local 1410, and that as a consequence, the potential class members had not exhausted the internal appeal process of the union. A similar affidavit was filed with a motion to dismiss defendant-George Dixon as a representative of Local 1410. Defendants also filed a motion for summary judgment on the grounds that, “Plaintiffs have not exhausted the internal grievance procedure required by Article VIII [sic XIII] of the Constitution and By-Laws of ILA Local 1410 and the International Longshoremen’s Association, Article XIX . . . .” Attached to this motion was yet another affidavit by the secretary-treasurer of Local 1410 which stated essentially that the named plaintiffs had not filed an appeal with their union representative before initiating their lawsuit.

The plaintiffs subsequently filed an affidavit in opposition to the various motions which had been made by the defendants. The plaintiffs’ affidavit contained statements by an attorney who had represented the plaintiffs in 1975. The attorney stated that he had filed a claim against Local 1410 in 1975 and that the claim had been dismissed by the Mobile County Circuit Court on the ground that his clients had failed to exhaust their internal union appeal process. The affidavit continued by indicating that letters concerning the plaintiffs’ claims had been sent in October of 1976 to the president of Local 1410 (George Dixon) and to the secretary-treasurer of the South Atlantic and Gulf Coast District of the International Longshoremen’s Association (J. H. Raspberry). The attorney received an unsatisfactory reply to his inquiries from Raspberry, upon which the attorney again wrote Raspberry requesting a determination of the plaintiffs’ appeal as soon as possible. Raspberry did not respond to the second letter, and so the attorney again wrote Raspberry in December of 1976 and demanded that the latter reply to the attorney’s letter requesting a determination of the plaintiffs’ appeal. Consequently, the affidavit of the attorney concluded by stating that the International Longshoremen’s Association had refused to honor the appeal process and that the plaintiffs had no power as individuals to compel the union to follow the appeal process. Thus, the attorney contended that the plaintiffs had been denied the remedies available through the process of an appeal to their union.

The letters discussed above were attached to the attorney’s affidavit and one letter, which was addressed to Raspberry, expressly requested that the letter be deemed an appeal from Local 1410’s refusal to provide the plaintiffs their pension payments. Moreover, the series of correspondence attached to the affidavit of the attorney demonstrates that Raspberry wrote to Local 1410’s president, George Dixon, and suggested that Dixon advise the lawyer who represented the plaintiffs to contact Local 1410’s attorney. Counsel for the plaintiffs responded to that letter by writing to Raspberry:

“Please be advised that a law suit had been filed previously at which time I was dealing with attorneys for the Local and that case was dismissed on the grounds that I had not exhausted the Inter Union appeal process. Please be advised that I am not interested in talking with any attorneys here locally in as much as I have already done so ánd I was unable to reach any type of an agreement with them.
“My letter to you of November 3,1976, was an appeal of the Local Unions denial of my clients’ claim and I wish a decision from the district level as soon as possible.”

Upon receipt of the affidavit of the lawyer who had represented plaintiffs in their 1975 suit, the defendants filed a fourth affidavit by the secretary-treasurer of Local 1410 in support of the defendants’ motion for summary judgment. Attached to this affidavit were copies of the constitution, bylaws and rules of order for Local 1410. These documents set out an appeal procedure to be used by union members who felt aggrieved by the actions of their union. Article XIII, section 9 of the constitution of Local 1410 establishes that each local union is governed by its executive board and that the board shall exercise general supervision over the local’s property and affairs. Section 9(a) also provides that the board shall have such powers as are necessary or appropriate to effectuate the authority granted to it by Local 1410’s constitution and by the bylaws of the local union. Among these powers is the executive board’s authority under Article XIX, section 1 to hear appeals resulting from any “action, failure to act or decision in the exercise of the [board’s] original or appellate jurisdiction.” Moreover, Article XIX, section 1, provides a hierarchy for the appeal process, beginning with an appeal from an action by a local union official (which must be taken to the executive board), and culminating with an appeal to the convention of the International Longshoremen’s Association. Continuing, Article XIX, section 3, establishes that all appeals must be in writing and filed with the secretary of the body to which they are addressed within thirty days after the rendition of the decision from which the appeal was taken unless a longer period for initiating an appeal is permitted.

On the basis of the affidavits, letters and the constitution of Local 1410 the parties’ dispute was submitted to the trial court for its consideration of the defendants’ motion for summary judgment. After an examination of pleadings and affidavits presented by the parties, the trial court granted the defendants’ motion for summary judgment on the grounds that the plaintiffs had failed to exhaust the internal grievance procedure required by the constitution of ILA Local 1410. From the trial court’s order dismissing their suit plaintiffs appeal.

On appeal, plaintiffs contend that under the United States Supreme Court’s decision in N.L.R.B. v. Industrial Union of Marine & Ship. Workers, 391 U.S. 418, 88 S.Ct. 1717, 20 L.Ed.2d 706 (1968), a union member is not required to prolong his efforts to enforce his rights by means of the internal grievance procedures of his union beyond four months. Plaintiffs assert that in the instant case they pursued their grievance for over four months and that, as a consequence of this fact, they were entitled to initiate a lawsuit even though the union grievance procedure had not been exhausted. Alternatively, plaintiffs claim that in view of the affidavits submitted in this ease, there exists a genuine issue as to whether the plaintiffs had exhausted the ILA’s internal procedures for appealing a decision by a local union official. We find that there is no merit to either of plaintiffs’ contentions.

In regard to plaintiffs’ argument that their local union needlessly prolonged the internal appeal process beyond four months thus justifying the filing of a legal action by plaintiffs, we have carefully examined the Supreme Court’s decision in Industrial Union of Marine & Ship. Workers, and do not find it applicable to the present case. The Supreme Court’s opinion in Industrial Union of Marine & Ship. Workers indicates only that the Court concluded that unions were authorized to have a hearing procedure for processing the grievances of their members, provided such procedures did not consume more than four months of time. Labor-Management Reporting and Disclosure Act of 1959, § 101(a)(4); 29 U.S.C.A., § 411(a)(4). And if the procedures were deemed to have consumed more than four months of time or if circumstances justified legal action prior to the end of the four month period, a court or agency could consider whether a particular procedure was “reasonable” and entertain the complaint even though the grievance procedures had not been exhausted.

However, basic to the conclusion reached in Industrial Union of Marine & Ship. Workers is that the complaining party seek to utilize the grievance process. See Republic Steel Corporation v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965); Hayes v. Alabama Dry Docks & Shipbuilding Co., 295 Ala. 216, 326 So.2d 289 (1976). In other words, labor policy requires, that individuals who wish to assert grievances must attempt to use 'the grievance procedure provided by their union as the mode of redress. A contrary rule would permit an individual union member to completely ignore available grievance procedures in favor of a lawsuit. Such activity would have little to commend it since it would deprive the union of the opportunity to undertake a settlement of its member’s grievance. Moreover, to allow an individual to sidestep the procedures provided by his union constitution would reduce the effectiveness of a uniform method for orderly settlement of grievances by union members.

Consequently, it is only when the union refuses to acknowledge the member’s grievance or only perfunctorily processes the individual’s claim that a court may consider whether the manner in which the procedure is used is “reasonable” and thus entertain the individual’s complaint even though he has not exhausted his grievance procedures. See N.L.R.B. v. Industrial Union of Marine & Ship. Workers, supra.

In the instant case there was no evidence that the defendants or their officials refused to acknowledge the plaintiffs’ grievance or needlessly prolonged the procedure which the plaintiffs were required to follow in order to obtain relief. Instead, the union did not take any action with regard to the plaintiffs’ complaint because the plaintiffs did not follow the procedures mandated by the constitution of ILA Local 1410. These procedures required: (1) that the plaintiffs file notice within thirty days after the rendition of the decision from which the appeal was taken; (2) that notice of the appeal be in writing and filed with the secretary of the local’s executive board; and (3) that any appeal resulting from the failure of any officer of the local to act be taken to the executive board of Local 1410. From the affidavits and correspondence submitted to the trial court it is clear that the plaintiffs did not comply' with any of these requirements.

Rather than file their grievance within thirty days after their union notified them that they would no longer receive pension payments, the plaintiffs initiated a lawsuit. When their legal action was dismissed under Rule 56(c), ARCP, the plaintiffs then sought to proceed under the terms of their local’s constitution. However, their appeal from the action of the union on February 19,1975 was dated October 4,1976, approximately nineteen months after their grievance arose and well outside the thirty day limitation for filing complaints. Moreover, plaintiffs filed their grievance with the secretary of the district council for the South Atlantic and Gulf Coast District of the International Longshoremen’s Association rather than the secretary of the executive board of their local as specified in Article XIX, section 3 of Local 1410’s constitution. Finally, even if this court accepted the plaintiffs’ argument that their local officials had deliberately failed to respond to the complaint of-the plaintiffs in an effort to deprive the latter of their remedy under the constitution of Local 1410, the proper procedure in such a situation would require a valid effort by the plaintiffs to use the process set out in their local’s constitution, i. e. an appeal to the executive board of Local 1410. The plaintiffs, however, did not attempt to use the proper procedure, choosing instead to file their lawsuit. This action sidestepped available grievance procedures in favor of litigation and was a violation of the terms of Local 1410’s constitution.

In view of the fact that the plaintiffs never initiated their grievance with the local union in the proper manner nor sought to complete the grievance process, we are not prepared to hold that the union refused to consider plaintiffs’ complaint or undertook a perfunctory review of the latter’s grievance; consequently, it was necessary for the plaintiffs to exhaust the internal grievance procedure of their union before the circuit court could consider their lawsuit.

Likewise, there is nothing in the record to support the plaintiffs’ claim that the affidavits submitted by the parties in this case demonstrate a genuine issue as to whether the plaintiffs had exhausted the internal procedures for appealing the decision of their local union officials. Accordingly, the judgment of the trial court dismissing plaintiffs’ action under Rule 56(c), ARCP, is affirmed.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.

      . The Alabama Supreme Court in Hayes v. Alabama Dry Docks & Shipbuilding Co., 295 Ala. 216, 326 So.2d 289 (1976), recognized that state law is preempted by federal labor law.


text:
    ROSS-CLAYTON FUNERAL HOME, INC., et al. v. John A. TURNER et al.
    Civ. 1347.
    Court of Civil Appeals of Alabama.
    May 10, 1978.

      James T. Upchurch, III, Montgomery, for appellants.
    Alfred W. Goldthwaite, Montgomery, for appellees.
   WRIGHT, Presiding Judge.

Defendant appeals from judgment denying new trial in an action for breach of contract and fraud or misrepresentation. The issue is whether a new trial was due to be granted upon ground of inconsistent verdicts when the court had given the verdict form in its oral charge without objection by defendant. We affirm the trial court.

Plaintiff Turner sued defendant Ross-Clayton Funeral Home, Inc., for breach of the contract for burial of their daughter, alleging that a different casket was delivered from that contracted for; burial was in the wrong place; the marker was not properly set; the grave was not properly finished. Fraud and misrepresentation were also charged. Defendant counterclaimed for the unpaid balance of the contract. The jury returned a verdict for plaintiff awarding damage of $2,800 and a verdict for defendant awarding $929. Defendant moved for mistrial after the verdicts were returned on the ground that they were inconsistent. The motion was denied. Motion for new trial was subsequently made on the same ground and denied.

The record indicates that in charging the jury, the court directed that they could return any one of three verdicts. The third form given was the verdict returned. No objection to the form was made by either counsel. When the verdicts were returned and counsel for defendant moved for mistrial, the court reminded counsel that no objection had been made when the form of the verdict was given to the jury.

Without deciding whether the verdicts are in fact inconsistent under the pleading and evidence, we find the trial court may not be held in error when there was no objection to the charge of the law to the jury. ARCP Rule 51. Hogan v. Alabama Power Co., 351 So.2d 1378 (Ala.Civ.App.1977). The instruction became the law of the case when defendant made no objection and the jury was bound by it. Loch Ridge Constr. Co. v. Barra, 291 Ala. 312, 280 So.2d 745 (1973); Lee v. Gidley, 252 Ala. 156, 40 So.2d 80 (1949).

Even if inconsistent, the verdicts, in light of the evidence do not appear to be so injurious or unjust to defendant as to require disregard of Rule 51, even under the federal plain error provision. Clegg v. Conk, 507 F.2d 1351 (10th Cir. 1974), cert. denied, 422 U.S. 1007, 95 S.Ct. 2628, 45 L.Ed.2d 669 (1975); Lamb Enterprises, Inc. v. Toledo Blade Co., 461 F.2d 506 (6th Cir.), cert. denied, 409 U.S. 1001, 93 S.Ct. 325, 34 L.Ed.2d 262 (1972). See Rule 45, ARAP.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.