Craze v. Alabama State Land Co.

46 So. 479 | Ala. | 1908

ANDERSON, J.

-While the plaintiff in trover should be permitted to prove the value of the chattels converted at any time between the conversion and trial, it was error on the part of the trial court to permit proof of the value of lumber at Brown’s mill, in the absence of any evidence that the logs had been converted into lumber. Lumber is to be distinguished from logs or timber (Webster’s Dictionary), and in common parlance as well means more than ordinary logs.

For the same reason, the trail court erred in giving chage 2 requested by the plaintiff, as there was no proof of the conversion of lumber as set out in the second count of the complaint.

The trial court committed no reversible error in giving charge 1 requested by the plaintiff.

Charge 1, the general charge, requested by the defendant, was properly refused.

Tbe trial court properly refused tbe other charges requested by tbe defendant. Tbe fact that the company did or did not reject tbe plaintiff’s application of purchase in no way authorized him to denude tbe land of tbe timber until be got bis deed or was put in possession as purchaser. An acceptance of bis application, whether express or otherwise, would merely enable him to compel performance. He was to pay only a small part in cash, and was to secure tbe other by mortgage on tbe land, and which may have been of value only because of the timber located thereon, and the defendant had no right to remove the timber therefrom until he acquired a title and had been let into possession thereunder.

The exceptions to the rulings of the court with reference to the evidence, save as is heretofore discussed, were clearly innocuous to appellant.

The judgment of the circuit court is reversed, and the cause is remanded.

Fever sed and remanded.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.