64 So. 787 | Ala. | 1914
Cleveland was engaged in the manufacture of lumber at a plant he had rented from the McDonald lumber Company. The landlord commenced a suit by attachment, claiming a lien under the statute for rent in arrears, and sought to enforce its claim by a levy upon two piles of flooring which had been manufactured and assembled upon the premises accupied by defendant. The McGowin Lumber Company interposed a claim, and at the end of a trial of the right of property the court gave the general charge for plaintiff, whereupon claimant appealed.
The first question presented is whether, apart from the question of waiver or estoppel to be later considered, defendant had so disposed of the property to appellant as to defeat plaintiff’s right to a lien. It is a circumstance to be considered that the lumber had not been removed from the premises, but we do not think that circumstances conclusive. It was one of the intendments of the contract between plaintiff and defendant, lessor and lessee, that the latter might dispose of the product of the plant in the usual course of trade free from any lien the former might claim as landlord under the statute, and that the purchaser might remove his purchase. Otherwise the lessee could hardly have found buyers or the means of carrying on his business. We are not so well versed in all the usages of the lumber trade as to be able to say, as matter of law and contrary to appellant’s contention, that a sale of sawn lumber under the circumstances shown was not in the usual course of the trade. There was, however, a condition of the original contract of sale between defendant and claimant which is conclusive of the proposition that
Appellant contends nevertheless that what after-wards passed between the parties to the original contract of sale was effectual to pas's title to- the lumber in controversy. It says, in short, that the parties to that contract entered into a new agreement. This is what occurred: Cleveland, needing money with which to pay rent, on two occasions made to claimant a statement of the amount and quality of the lumber then collected, and got from claimant sums equal to the full contract price per thousand feet of that much lumber, and claimant then had it insured against loss by fire. On the first occasion Cleveland gave claimant evidence in writing of the transaction as follows:
“Mobile, Alabama, July 1st, 1910.
“Delivered by George B. Cleveland lumber as below to planer sheds McDonald mill for account of McGowin Lumber & Export Company: [here follows a description by tally of two lots of lumber, one containing 14,419 feet and the other 11,542 feet]. Received from McGowin Lumber & Export Company $431.12 as an advance on above lumber July 1st, 1910. Geo. B. Cleveland.”
On the second occasion Cleveland rendered to claimant a statement as follows:
“Sept. 9th, 1910.
McGowin Lbr. Co. to Geo. B. Cleveland, Dr.
27,916 ft. 2i/2 "B. Fig. 1800........................$501 70
19,000 “ “ No. 1 C. Fig. 11.00...... 266 00 $767 70
July 2. By cash..........................................$112 70
Sept. 9. By 60 da. acceptance......... 355 00 $767 70
“Above stock held at McDonald mill for shipment.
Geo. B. Cleveland.”
On our first consideration of this case, laying, as the court now thinks, too much stress upon the fact that the parties to these transactions referred to the first payment as an advance, and upon the statement that the lumber was held at the mill for shipment, meaning, as we then said, for shipment under the terms of the original contract, the writer expressed for the court the opinion that, as matter of law on the facts stated, title to the lumber the subject of this suit did not pass to the claimant. But the parties to that contract were competent to modify it by subsequent agreement as they pleased, and now the court, the writer concurring, is of opinion that the question whether the claimant accepted the lumber under the planer sheds as a pro tanto fulfillment of the contract, and so whether the title passed, was a question of fact, a question as to the intention of the parties to the transaction to be determined by the jury on consideration of all the surroundings. The contract as to this lumber was complete if the buyer and seller so agreed, and the title passed if that was the mutual understanding of the parties, although it may have
Our conclusion that the question of sale or loan was for the' jury makes proper some modification of our former opinion on the subject of the alleged estoppel against appellee to insist on its lien. There is no pretense that appellee did anything at the time of the first payment by appellant to Cleveland which could, on any principle, work an estoppel against appellee. Appellant and Cleveland entered into that transaction without the knowledge or consent of appellee company. So
On the foregoing consideration the court is now of the opinion that the general charge in favor of appellee was error, and that a reversal should be ordered.
Reversed and remanded.