50 Ala. 352 | Ala. | 1874
This is a suit in trover for one thousand dollars, as damages for the conversion of twenty thousand feet of sawed lumber, the property of Cook & Webb, as partners, who were the plaintiffs in the court below. Samuel Noble and Charles Rattary were the defendants below. The case was tried by a jury, on the plea of not guilty; and there was a verdict and judgment for the plaintiffs, for the sum of $194.19, and costs. From this judgment the defendants below appeal to this court. The errors assigned, which it is necessary to notice in this opinion, are based upon the ruling of the court below on certain of the charges to the jury, and certain charges which were asked by the defendants and refused.
It appears from the bill of exceptions, that there was testimony offered to the jury on the trial below, which tended to show that the plaintiffs made a proposition in writing to Samuel Noble, one of the defendants, which was accepted by him, and which is in these words: —
“ Mr. Samuel Noble : Dear Sir, — If you will make the following repairs on the saw-mill we have rented from Daughdrill & Standifer, to wit: bore out the cylinder, furnish new feed-pipe, make new packing rings, furnish new brass for fly-wheel shaft, we will pay you for said repairs by cutting for you such lumber as you may require for the use of Cornwall Iron Works Company, or its contractors; said lumber to be cut without any unreasonable delay, after the mill is repaired, and to be the first lumber the mill shall cut. The bill for repairs of the mill while run by Daughdrill & Standifer we will assume, and pay in lumber as above, and at the same price and terms as was accepted by Daughdrill & Standifer. The amount of lumber cut under this arrangement shall not exceed five thousand feet, over and above the bills now in Standifer & Daughdrill’s hands. Said bills may, however, be altered and amended at any time. The repairs thus paid by you for engine shall be considered an advance payment on lumber to be cut by us, and shall remain a lien on the same until full payment is made, not only for repairs on engine for us, but for that done by you for Daughdrill & Standifer, or Standifer & Daughdrill, as the case may be. Said mill is located in Cherokee county, Ala.”
There seem to have been several exceptions to the refusals to exclude evidence objected to by the defendants on the trial below. But the assignment of error does not point out, with any precision, which one of these exceptions is intended to be insisted on. Such an assignment is insufficient, particularly when the brief of counsel does not define it, as is the case here.
The judgment of the court below is reversed, and the cause is remanded for a new trial.