5 Div. 885. | Ala. | Apr 10, 1924
Count AA of the complaint was not subject to the grounds of the demurrer interposed thereto, as it was not necessary for the plaintiff to detail all of his acts essential to a compliance with the contract on his part. It does aver that the lumber was merchantable and was manufactured in strict compliance with the contract, sets out the contract as an exhibit, and specifies the manner in which it was breached by the defendant. Nor did said count fail to state a cause of action because it adopted a part of count 2 which was subsequently eliminated. The elimination of count 2 did not carry with it so much thereof as was adopted in and made a part of count AA.
The trial court did not commit reversible error in sustaining the demurrer to defendant's plea 4 for the reason that the material averment of same was provable under the general issue.
The trial court erred in refusing the defendant's requested charge A. It hypothesizes the facts relied upon in count AA, a failure to take and pay for the lumber which had then and there been cut and stacked upon the yard under the terms of the contract. True, the charge left it open to the jury to find whether or not the contract covered timber on the Mann land alone or other lands as well, but the plaintiff could not complain of this, for the contract as matter of law should not have been construed as including timber from other lands, and, if the jury found that defendant received and paid for all lumber he had contracted to take and which had been cut and furnished by plaintiff, he was entitled to a verdict. True, the charge is not confined to a verdict as to, count AA, but goes to the whole case, but its *78 refusal cannot be justified, as suggested by counsel for appellee, because there was undisputed evidence in support of the common counts. The plaintiff did testify that he was docked $1 per thousand for some of the lumber for a failure to stack same and that it was hauled away before he could stack it or even if he had to stack it it could have been done for 35 cents a thousand and not $1 as deducted by the defendant. The plaintiff did not, however, fix any definite amount of lumber so furnished and from which the deduction was made, and it was open for the jury to find that the defendant had paid the plaintiff in excess of the price of the lumber sufficient to cover the deduction. McCord and his daughter both testified that plaintiff had been overpaid, approximately $200, and the charge left it open to the jury to find whether or not defendant had received and paid for all the lumber furnished by the plaintiff to him under the contract, which they should find to exist, and, if they should so find, the plaintiff was not entitled to a verdict either under count AA or the common counts.
Charge C, refused the defendant, could have well been given, as it merely fixes the burden of proof where it belongs. Whether or not it was so covered by the oral charge, so as to prevent reversible error, we need not determine, as the case must be reversed for other reasons.
There was no error in refusing defendant's requested charge AA. Even if it be conceded that the original contract applied only to the Mann land, the charge ignores some of the plaintiff's evidence to the effect that defendant agreed to accept a certain quantity of lumber as well as other to be sawed from logs then on the yard, regardless of where they came from. This feature, however, was covered by refused charge A, by the hypothesis that defendant contracted to purchase only the Mann timber and received and paid for all that he contracted to purchase.
There was no error in refusing defendant's charges X and Y, the general charge as to different counts, as it was a question for the jury as to whether or not defendant had breached the contract as charged in count AA or whether or not he had failed to pay plaintiff in full for all the lumber furnished.
The rulings upon the evidence present no reversible error, as the same were either free from error, or, if erroneous, were not injurious.
For the error above pointed out, the judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.