The Montgomery advertiser., 1908-11-04


 MERRILL V. WORTHINGTON.
 Assumpsit--( (Decided April 27. is0S.--
 46 South. .77)
 1. Assumpsit; pleading; replication: departure from complaint-Where the contract has been wholly executed by one party. and ther remains only the duty to pay a sum certain, or which can be made certain by calculation, recovery may be had on the common counts, although the contract was, sn writing; and where the declaration was for work and labor done on open af- count and by a, ,ount stated ana the plea was that 1t was done under writ ten contract or special contract, rep lication which alleges written con tract under which plaintiff did certain work and that defendant requested him to .perform additional work, which he did, and setting up the amount due him under the contract, together with a certain sum due under the contract and for the additional work, the reph- cation was in support of the complaint. and did not constitute a departure, ana the balance due on the contract was re- coverable on the eommoI- count.
 2. Same; allegation of promise or reasonable value; statutory form-ln declaring on the common counts al common law the complaint should state a promise to pay. or that the work done was reasonably worth the, sum claimed but under tae form of common count as laid down by Section SSoS' Code 1s96 fo:rl 10, such allegation IS not required, or even an aVerment that the work was done at the special in- stance and request of def noant' IT ne has accepted r..
 3. Trial; reception of evidence; ob- lection; statement of ground-Where plaintiff testified that defendant told him that he would be about the work very little and that one $. was his S1- perintendent and agent, and any oroer by S. would be the same cs If given by defendant, and as pla.ntiff was relat- ing what S. said to him about doing the work. an objection on the ground that what took place with reference to S. was at the inception of the work, was not a proper ground of objection TO the testimony being given.
 4. Principal and agent; liabilities to third person; existence of relation Whether or not s. was the supertntend- ent and agent of the defendant in di- recting the performance of the work, was a question for the jury where the evidence tended to show that defendant h.-I told plaintiff that s. was his su- perintendent and agent and that any orders from S. would be the same as # given by defendant.
 5. Same extent of agents authority; duty to ascertain-One dealing with an agent is bound to to ascertain the ex- tent of his authority, and where the agent Is merely an overseer or super intendent his principal is bound only for acts done within the scope of his agents duties as such.
 6. Contract; action; evidence-Plain- tiff having testified that defendant told | him that l e would be about the work very little, but that S. was his super | intendent, and that any order from S.. | would be the same as If given by de- fendant, 1t was competent for plaintiff to relate what S. said to him and an objection that aLy conversation with S. was inadmissible, was properly over- l ruled. Appeal from Mobile City Court. i Heard before Ton. O. J. Semmes. | Affirmed. Opinion by Simpson, q.
 Tyson. c. J, and Dowdell and Nc C!ellan, J. J., concur.