43 So. 231 | Ala. | 1907
The contract, for the alleged breach of which damages are sought to.be recovered, ivas entered into between one Boyett and defendant. Boyett, it appears, assigned it in writing to one of these plaintiffs. Plaintiffs, perceiving it to. be necessary in order to maintain the action, amended their. complaint by averring that “after the transfer and assignment of said contract io plaintiff John E. Fletcher the defendant was informed of the same, and that, after receiving such information and with the knowledge that plaintiff had become the transferee of said contract, he agreed to carry out and perforin the. same with plaintiff as such assignee,” etc. Under the contract, as we construe it, Bovett ivas obliged to put into .the wastewavs or into the ditch-of Prestwood at least 500 pine logs suitable for manufacture into saivn, merchantable timber within the period specified for the termination of the contract. The placing of the-logs along the ditch .of the. defendant wou-ld not be a delivery .to the. defendant of them under the. contract, imposing upon him the duty to run them to his mill for the purpose of being manufactured. And
Assuming that the averments of the complaint as last amended show a breach of' the contract, entitling the plaintiffs to maintain the action therefor, it is obvious that under the issue as made by the pleas interposed to-it, upon which the case was "tried, the burden of proof was upon them to establish to the reasonable satisfaction of the jury (1) that defendant agreed to perform the contract after its assignment; (2) that plaintiffs deposited the minimum number of logs specified in the contract in the wasteways or ditch of defendant within the required timé; and that at least that number was suita1 able for the manufacture into sawn, merchantable timber. Tliere was a conflict in the testimony as to all of these matters, and whether, therefore, the plaintiffs discharged the burden which was upon them in respect thereto, was clearly a question for the jury. It follows, therefore, that charges designated 2 and B, leqnested by plaintiffs, were properly refused.;
Charges 5, 6, 9, 10, and O were framed upon the theory that a delivery of the logs by plaintiffs on, instead of into, the ditch or wasteways of defendant, -was a compliance with the contract. Their refusal was proper.
Charge A, requested by plaintiffs, was calculated to mislead the jury to conclude that defendant was liable under tbe contract with Boyett without regard to any promise by him to John E. Fletcher to perform it after its assignment to him by Boyett. Charge E assumed that the logs delivered by plaintiffs were suitable to he manufactured into merchantable timber..
The only criticism indulged against the correctness of charge 7 is that it was confusing and misleading. This may be conceded, and yet this would not be sufficient to reverse the judgment. Furthermore, the charge could have exerted no possible influence upon th jury’s determination of the question-of the plaintiffs’ right of recovery, since it relates exclusively to the measure of damages in the event any recovery was allowed.
Charge 1 has reference to inherent defects in the timber or logs, for which the defendant, of course, could not be held responsible. It is not insisted that the giving of charge 13 was error.
We are unwilling to affirm that the trial judge erred in denying the motion for a new trial.
Thus far we have only dealt with, the questions which were raised and presented for the determination of the trial court, and have disposed of the rights of the parties along the lines upon which that court seems to have determined them. There is, however, another question which we feel constrained to notice, lest our failure to do so might be misconstrued and misunderstood. It is this: Whether a recovery can be had by the two plaintiffs for whose use or benefit the action was brought? Under the statute they must be considered as the sole and real parties plaintiff on the record. Section 29 of the Code of 1896; Reese v. Reaves, 131 Ala. 195, 31 South 447; Cowan v. Campbell, 131 Ala. 211, 31 South. 429. The contract, which is confessed by plaintiffs to be not assignable, becomes obligatory upon defendant in favor of John E. Fletcher only by virtue of his promise to Fletcher to perform it. It is upon this promise, which is- alleged in the complaint, that John E.. Fletcher had a right of action for its beach; Without it, under the pleadings, John E. Fletcher, although the contract had been transferred in writing to him, could not have maintained the action.—Arkansas Valley S. C. v. Belden, 127 U. S. 379, 8 Sup. Ct. 1308, 32 L. Ed. 246; Clarke on Contracts*
Affirmed.
