60 So. 423 | Ala. Ct. App. | 1912
The claims asserted by the plaintiff (appellant here) were dependent upon the terms of a conveyance executed to the defendants by her and her husband, who was originally joined with her as a party plaintiff in the suit. That conveyance bore date January 1, 1909, embraced, with an exception not material to be stated, all timber standing on a described tract of land, provided that the timber on a designated part of the tract, referred to as the “new ground,” should be removed on or before the 15th day of March, 1909, that the timber on another designated part of the land, referred to as the “ridge tract,” should be removed by the 1st day of April, 1909, that the timber on still another
A ground upon which the defendants claimed exemption from such liability is indicated by the written charge given at their instance, which is referred to in the seventieth assignment of error. That charge was improperly given, because it assumed the existence of evidence tending to prove that S. B. Harris was the agent of his wife, having authority to bind her by his consent that the timber be cut after the dates stated in the conveyance. We find no such evidence in the record.
Other rulings of the court, not necessary to be enumerated, seem to have been induced - by the assumption
The obligation of the defendants to make the stipulated addition to the Walter Burks house was incurred when they elected to locate their mill at that site. The instrument does not specify any date or time for the performance of that obligation. In such case the law implies an agreement to perform vdthin a reasonable time. — Lane v. May & Thomas Hdw. Co., 121 Ala. 296, 25 South. 809. “What is a reasonable time is sometimes a question of fact and sometimes a question of law. When it depends upon facts extrinsic to the contract, which are matters of dispute, it is a question of fact; wdien it depends upon a construction of a contract in writing, or when it depends upon undisputed extrinsic facts, it is a matter of law7.” — Cotton et al. v. Cotton, 75 Ala. 345. It w7as said in the opinion in the case of Drake v. Goree, 22 Ala. 409, that “the question of reasonable time, applied either to the delivery of articles or the doing of work, is, generally speaking, one of fact, and to be determined by the jury under all the circumstances which surrounded the case at the time the contract was made.” We are not of opinion that the evidence in this case was such as to justify the court in determining, as a matter of law7, that, when the suit w7as brought in March, 1911, a reasonable time for making the stipulated addition to the house mentioned had
The part of the oral charge which was excepted to was to the effect that under the evidence the jury could not find for the plaintiff on the fourth count of the complaint, for the reason that under the deed the defendants had until January, 1912, to make the addition to the house, and that, so far as it concerned that matter, the suit was prematurely brought. By this ruling the deed was construed as giving the defendants the same time within which to make the addition to the house in question as-was allowed to them for the operation of their sawmill on the land, and for removing timber from the parts of it not affected by special restrictions in that regard. We find nothing in the terms of the deed to warrant this construction. Its provisions which make mention of a period extending to January, 1912, do not purport to set the time for the performance by the defendants of their obligation to make the addition to the house. As above stated, the instrument does not fix a
Reversed and remanded.