Alabama State Land Co. v. Reed

99 Ala. 19 | Ala. | 1891

COLEMAN, J.

The Alabama State Land Company sued C. M. Beed to recover from him the statutory penalty, provided in section 3296 of the Code, for having willfully and knowingly cut down one hundred and seventy-six trees, which were on the lands of the plaintiff. The plaintiff in that suit, by its agent Howard, made affidavit, and executed bond for the issuance of garnishment process. That trial resulted in plaintiff taking a non-suit.

The present suit was brought by Beed upon the garnishment bond, to recover damages for the wrongful or vexatious suing out of the garnishment process.

The first assignment of error is, that the court refused to permit the witness Howard to testify that he found a person cutting the trees, who told him that he was cutting for Beed. Tbe record shows that this evidence was admitted after the objection; but limited by the court to the question of the vexatious or malicious suing out of the garnishment. There was no offer to connect Seed with the act of this person engaged in the cutting of the trees, further than by the declaration itself. The admission of this evidence, limited as it was to the question of vexatiously or maliciously suing out the garnishment, furnishes no ground of complaint to appellant.

In the charge given at the request of the plaintiff, the court properly placed the burden of proof on the defendant to reasonably satisfy the, jury that Reed, had willfully and knowingly cut the trees, or had them cut, in order to sustain defendant’s plea of set-off.

Credit is a conclusion of fact, partly based on opinion, founded more or less on reputation. — Pollock v. Gantt, 69 Ala. 373. An injury to credit is a legitimate ground for the recovery of actual damage.—Durr v. Jackson, 59 Ala. 203; Flournoy v. Lyon, 70 Ala. 308.

The only damages recoverable in this State for failing to meet a purely moneyed obligation at maturity, is the interest which .subsequently accrues. Damages resulting from the mere delay to collect the money when due gives no cause of action. Such damages are too remote, and are purely speculative.

The record fails to show that the court ruled on the demurrers to the amended complaint. In such case, we must presume that the defendant waived his right to have judgment pronounced upon them.

Whatever error, as a legal proposition, may have existed in the refusal of the court to give charge No. 1 requested by the defendant, it is not available to it, under our system of pleading. The plaintiff in his complaint counted as a cause of damage on the injury done to his credit by tying up the money due him in the hands of the garnishee. Issue was joined upon the count, and the plaintiff without objection introduced evidence in support of it. Referring the charge to the pleading and proof, there was no error in its refusal.

The taking of a non-suit in an attachment suit is not conclusive of the fact of indebtedness vel non; and in a suit upon the attachment bond, the record of the attachment suit is always admissible.—Dothard v. Sheid, 69 Ala. 135; Pounds v. Hamner, 57 Ala. 346.

Charge No. 2, requested by defendant, was calculated to mislead, if not possitively erroneous; and charges numbered 3 and 4 assert incorrect propositions of law.

The principal is not responsible for the malice, vexation or wantonness of the agent, unless the principal authorized or participated in it, or subsequently ratified it; and such authority or participation can not be inferred from the mere relation of principal and agent.—Jackson v. Smith, 75 Ala. 97; Burns v. Campbell, 71 Ala. 271; Pollock v. Gantt, 69 Ala. 373; 73 Ala. 186-96; 7 Ala. 629. Charge No. 5 is faulty in that it ignores all consideration of the question of participation in, or ratification of, the intent of the agent by the principal. Charge 6 is argumentative ; and is defective in that it precludes any recovery for the mere wrongful suing out of the garnishment. An honest belief, founded ujoon reasonable grounds, that the writ was necessary, may furnish a defense against a recovery for a vexatious suing out of the writ, but is no answer to the claim for actual damages sustained by reason of a wrongful suing out of the writ of garnishment. The case of Pounds v. Hamner, 57 Ala. 342, was not intended to assert a contrary rule.

Charges 7 and 8 assert incorrect propositions of law. Although Reed may have purchased the trees, with the knowledge that they had been cut and taken away from the lands of another in violation of the statute (Code, § 3296), the simple fact that he purchased the trees with such knowledge, not having participated or aided or abetted in the .cutting or taking away, does not subject him to the statutory penalty.

We find no error in' the recoixl included in the assignments of error.

Affirmed.