Standard Sanitary Mfg. Co. v. Aird

On Rehearing. On the submission of this case the parties invited our decision respecting the transactions of Breeding and Barnett Lumber Company. When we determined them in accord with the conclusion of that court, except that only 60 per cent. of the account of the Barnett Lumber Company was thereby treated as a payment, we reversed the decree for the court and parties to further try the case. If upon another trial there appear other items of payment to the contractor sufficient to discharge the entire debt to him, it will doubtless be so decreed. But such items were not included in the contentions on this appeal, and do not seem to be included in exceptions by appellee to the register's report.

In response to the contention of appellant on rehearing, we will say that we do not agree that the acceptance by Tillman was conditional. In fact, it was unconditional, and when so accepted its terms clearly indicated that thereby the owner was to be credited with its amount. The fact that Breeding and the owner made a separate agreement as to when it would be paid to Breeding was a transaction between them alone, and did not affect the agreement between the contractor and owner as recited in the instrument, bearing an unconditional acceptance of the owner.

The other matters are sufficiently treated in the majority opinion.

The application for rehearing is overruled.

ANDERSON, C. J., and GARDNER, THOMAS, BOULDIN, and BROWN, JJ., concur.

SAYRE, J., adheres to the views expressed in his opinion.