109 Ala. 393 | Ala. | 1895
This case was tried on the second and fourth counts in the complaint, the first and third having been excluded from consideration by rulings of the court in favor of appellant. The second makes claim for $150, for 493 railroad ties, of the value o.f twenty-eight cents each, and for 89 other railroad ties of the value of fourteen cents each, “sold by plaintiff to defendant in the month of October, 1893;” and the fourth makes claim for a like sum of money, due by account on the......day of October, 1893, “for and on account of railroad ties, the property of plaintiffs, appropriated by defendant to its use, on the......day
The undisputed facts in the case are that for several years prior to July, 1893, the plaintiffs had sold cross-ties to one Scott, who sold them to defendant; and, according to their course of dealing, plaintiffs placed the ties for Scott on the right of way of the defendant company, marking them with their initials, UM. & S.” One Osborne was employed by the defendant to inspect and classify all ties it bought. Scott, under his contract with the plaintiffs, paid 28 cents, each, for first-class, and 14 for second-class ties, after they were placed on the right of way and inspected, and these ties, after they had been inspected and classified, were used by the defendant; that Scott’s contract to furnish ties to defendant lasted till December, 1893, and the defendant bought all its ties from said Scott under its contract with him ; that the ties in controversy were purchased by defendant from Scott, under its contract with him, just as it had done previously, and defendant paid him in full for them, before the commencement of this suit; that the defendant had no contract with plaintiffs to furnish to it any ties; that Osborne’s duties were to inspect and classify the ties he found on the right of way, and make report of the samé to the defendant company, and that it paid Scott for them on the basis of his classification ; that in October, 1893, under orders from his superior, Osborne inspected 25,000 ties under Scott’s contract with defendant, and had no authority to inspect any others ; that in October, 1893, under the instructions he received, he inspected and classified those in'controversy, and made his report to his superior, and that all the authority he had was in the matter of inspecting and classifying ties. It was further shown that Moore, one of the plaintiffs, wrote to Scott asking for pay for ties furnished in July, and also wrote to him several letters making inquiries about those furnished in October, the subject of this suit. Thus far the evidence is without conflict. The plaintiff Stephens, when examined in behalf of plaintiffs, was asked, — “Did you have any conversation, in October, with Osborne about the ties on the right of way, marked M. & S., as to ownership of
Under the evidence, the plaintiffs have failed to show any express contract with defendant, by which it became liable in anyway for these ties. The sole contention for
It should be added, there was no proof of the value of the ties. What the defendant agreed to pay Scott for those he sold it, under special contract, is not proof of value in this case.
The general charge as requested for defendant should have been given.
Other questions arising on the introduction of evidence, exceptions to which appear to have been well taken, need not be considered.
Reversed and remanded,-