Volume 191 — Alabama Reports

Heard before Hon. Lum Duke. Homer Carmack was convicted of murder, and he appeals. The record shows that defendant moved to quash the venire on the ground that the number of jurors summoned for his trial was less than the number fixed by the court for the venire, and less than 75 persons, and on other grounds not necessary to be here set out.

<p>Appeal from Conecuh Circuit Court.</p> <p>Heard before Hou. A. E. Gamble.</p> <p>Marvin Carter was convicted of murder in the first degree and he appeals.</p>

.Heard before Hon. J. E. Blackwood-. Bill Wilson was convicted of murder in tbe first degree, and be appeals. Tbe verdict as returned was as follows: “We, tbe jury, find tbe defendant guilty of murder in tbe first degree, as charged in tbe indictment, and fix bis punishment by imprisonment in tbe penitentiary for life.” Tbe court remarked: Your verdict is not in exact form.

Heard before Hon. M. Sollie. Sam Howerton was convicted of murder, and he appeals. The facts in reference to the judgment and verdict sufficiently appear from the opinion. The following charges were refused to defendant: “(1) Unless you are reasonably convinced beyond a reasonable doubt that defendant conspired with Sylvia Cummings to poison Alice Howerton, then you cannot find defendant guilty.

Heard before Hon. A. H. Alston. Clyde Patterson and others were convicted of murder in the first degree, and they appeal.

Heard before Hon. J. J. Curtis. Bert Richardson was convicted of manslaughter in the first degree, and he appeals.

<p>Appeal from Limestone Circuit Court.</p> <p>Heard before Hon. D. W. Speake.</p> <p>Ejectment by Henry Warten against Emmet Weather-ford. Judgment for defendant and pláintiff appeals.</p>

Heard before Hon. J. C. B. Gwin. Ejectment by G. W. and Nancy Pox against J. M. Salter. Judgment for plaintiffs and defendant appeals. The first deed exhibited ivas that of William Vines and others to Nancy Fox, executed December 27, 1890, acknowledged and recorded, and filed for record. The second deed was that of Nancy Pox and G. W. Pox to Pulton Snow, to become his at the death of the grantee, Nancy Pox, executed December 9, 1905.

<p>Appeal from Mobile Law and Equity Court.</p> <p>Heard before Hon. Saffold Berney.</p> <p>Ejectment by Lollie Belle Wylie against Mary E. Flowers. Judgment for defendant and plaintiff appeals.</p>

<p> Ejectment. </p> <p>1. Ejectment; Prima Facie Case.- — -A plaintiff suing in ejectment makes out a prima facie case by showing that the husband was a grantee of a grantor in possession of the land under claim of ownership, and possession of the husband of the land until his death, and a conveyance to her of their interest by the husband’s only heirs.</p> <p>2. Taxation; Tax Sale; Evidence. — Where a defendant in ejectment claims title as a purchaser at a partition sale, and under title aequired at a tax sale, and lias made improvements, the proceedings leading up to the tax sale, including the deed, are admissible in support of the plea of the three years statute of limitations, under section 2311, Code 1907.</p> <p>3. Same. — Under the short statute of limitations of three years (section 2311, Code 1907) a defendant in ejectment makes out a title by showing that he purchased under tax sale,and held adverse possession for three years to the property prior to the bringing of the suit, and where such defendant holds under a partition sale the title vests by a conveyance from the agent who purchased at the tax sale.</p> <p>4. Same. — Where defendant claims under the'short statute of limitation of three years as adverse possessor under deed at partition sale of the property as well as by tax title acquired by the agent at tax sale, the fact that partitioners at some time previous to the tax sale recovered a judgment in ejectment against some third person, would not affect defendant’s right to hold under the statute.</p>

<p> Ejectment. </p> <p>1. Husband and Wife; Conveyance of Land; Validity. — In an action in ejectment to recover land conveyed by a husband, the plaintiff, to the wife, the defendant, when she was his wife, evidence as to whether the lands - were plaintiff’s homestead at the time of such conveyance, was immaterial, since the conveyance operated to vest a legal title in defendant regardless of whether the lands constituted the husband’s homestead.</p> <p>2. Same. — Where a husband conveys the legal title to his homestead to his wife by a deed in which the wife does not join, he cannot thereafter recover from her in ejectment, although the lands are still impressed with a homestead right.</p>

Heard before Hon. H. A. Pearce. Ejectment by R. D. Holton and another against J. M. Rogers. Judgment for defendant, and plaintiffs appeal. Plaintiffs were the children of Jake Holton, who died intestate in October, 1900, residing in what was then Henry, hut is now Houston, county, and at the time he resided upon and occupied the lands sued for as a homestead, which did not exceed in value $2,000, and his personal property did not exceed $1,000 in value.

Heard before Hon. E. S. Lyman. Proceedings by the Alabama Power Company against J. B. Adams and others, to condemn land under the eminent domain statute. From the judgment rendered petitioner appeals.

Heard before Hon. E. S. Lyman. ■ Proceedings by the Alabama Power Company to- condemn a right of way for the erection and maintenance of towers, poles, and wire lines for the transmission of electricity on and across the lands of the Keystone Lime Company. Prom a judgment awarding damages, petitioner appeals.

Heard before Hon. g. E. Greene. R. A. Borok was convicted of violating an ordinance of the. city of Birmingham, and he appeals. Transferred from the Court of Appeals under the act creating said court.

Heard before Hon. Charles B. Teasley. Pinal settlement of the estate of George G. Miles, by the administrator, with contest by Bessie Miles Meade and others, distributees. Prom the judgment of the court refusing to allow credits and charging the administrator with certain sums, he appeals..

<p>Appeal from Jefferson Probate Court.</p> <p>Heard before Hon. J. P. Stiles.</p> <p>Georgia D. Gaither and Arthur A. Adams, as executors named in the will of Virginia Z. Siddons, filed said will for probate, and L. W. Phillips contested' same. Judgment for proponents, and contestant appeals.</p> <p>The grounds of contest were: (1) That the will was not duly executed; (2) testatrix was of unsound mind; and (3), that it was the product of undue influence of various named parties.</p> <p>At the request of proponent, the following charge was given: “(11) On the question of undue influence, the court charges the jury that they cannot find that the paper propounded for probate in this cause was the result of undue influence, unless the jury is satisfied by a preponderance of the evidence that it was not such a will as Virginia Z. Siddons desired to make, and that it was procured from her by coercion or fraud.”</p>

<p>Appeal from Jefferson Probate Court.</p> <p>Heard before Hon. J. P. Stiles..</p> <p>Application by Will Hynes to the probate court to set aside a decree granting homestead in which Paralee Underwood and others filed protest and contest. From a decree declining to vacate the judgment petitioners appeal.</p>

Heard before Hon. E. P. Goodwyn. Petition by Beatrice Woods for the revocation of letters of administration theretofore issued to Zoray Fields, upon the estate of Dock Fields, deceased, and for the appointment of petitioner as administratrix of such estate. From a decree granting prayer for relief, Zoray Fields appeals.

Heard before Hon. John H. Miller. Application for mandamus by Loveman, Joseph & Loeb, requiring the commissioners court or board of revenue of Jefferson county, to repay certain privilege taxes paid under .an unconstitutional statute, they having previously obtained a certificate from the probate judge of Jefferson county. From a judgment awarding the writ, respondents appeal.-

<p>Certiorari to Court of Appeals.,</p> <p>Petition of Wilson I. Burgin for certiorari to the Court of Appeals to review and revise the judgment of the said court, reversing and rendering the judgment of the lower court on the appeal of thé G. T. Wofford Oil Company v. Wilson I. Burgin.</p>

<p>Appeal from Lauderdale Chancery Court.'</p> <p>Heard before Hon. W. H. Simpson.</p> <p>Bill by A. E. Foy Company against John H. Haddock to declare a lien on a barn and an acre of land.</p> <p>Tbe case made by tbe bill is that complainant is a corporation organized under tbe laws of tbe State of Ohio, having its principal. place of business ¿t Cincinnati, in said state; that John Haddock is a resident •citizen of Lauderdale county, and on September 4, 1911, tbe orator sold Haddock 143 feet of lightning rod to be' used on tbe barn of defendant located on tbe land hereinafter described in''repairing,- altering,- or'beautifying same; that the‘lightning;rod11 Was ‘delivered and 'placed on tbe barn to repair, alter-' oV beautify the same,- for which defendant agreed to pay óratór "the sum of $50.05, aud. on November 1, 1911,' defendant became indebted to orator in that amount. Tbe bill then proceeds to describe the acre of land on which the barn was located, and sets out as an exhibit a statement claiming a lien on the land and barn therein described, and filed and recorded in the office of the judge of probate. The allegation of the bill as to the sale is as follows: “The said lightning rods were sold to defendant by orator on a written order made by defendant and directed to orator at its place of business in Cincinnati, Ohio, which said order was solicited by an agent of orator, and the order was to be filled by a shipment of said lightning rods from orator’s place of business in Cincinnati, and delivered to defendant under said written order at his home in Lauderdale county, Ala., according to the terms of said written order therefor,” etc.</p> <p>The demurrers raise the proposition that complainant was a foreign corporation .at the time it made the contract, and had not qualified to do business in this state, as required by the Constitution and statutes thereof, and that the contract alleged and set up constituted the doing of business in this state contrary to law.</p>

<p> Bill to Redeem. </p> <p>1. Mortgages; Statement of Debí; Persons Entitled. — Under section 5748, Code 1907, as amended by Acts 1911, p. 391, and section 5757, Code 1907, the basis of compensation for permanent improvement is title, which implies the legal title, and hence, the redemptioner may redeem upon demand to the purchaser without a demand on the parties to whom the purchaser had contracted to sell separate parts of the land, to be conveyed when the purchase money was paid, since such parties had no title.</p> <p>2. Same; Redemption; Nature and Scope. — Under the statutes, redemption of land cannot be exercised otherwise than as to the whole of the property bought at the foreclosure sale. The process .contemplated'and required by the statute mates an indivisible entity of the act of redemption, the effect of which is to reinvest title in the redemptioner by divesting it out of the person in whom it is vested.</p> <p>3. Same; Foreclosure; Interest. — Under section 5748, Code 1907, •'the'purchaser, on foreclosure against whom bill filed for redemption was good was. entitled to the legal rate of interest upon the sum ’to be'paid to effect the redemption sought.'</p> <p>4. Equity; Modifying Decree; Application; TintedWhere a decrée was entered-at a special term, and was corrected and affirmed, a.mo"tion- to' modify the decree not made until after the termination of such term or until after the expiration of .the -time allowed by rule 38, -Chancery. Practice for presenting an application .for rehearing, 'came too late; ‘as the court had lost its power to alter the decree.</p>

Heard before Hon. W. W. Pearson. Bill by Alice V. Taylor against E. P. Yarbrough and others, to enjoin the turpentining of certain lands. Temporary injunction was granted, and from an order denying a motion to dissolve the temporary injunction, respondents appeal.

Heard before Hon. W. H. Simpson. Bill by Jere Murpby against J. W. Pipkin and others, to annul a conveyance as a fraud on creditors. Decree dismissing the bill, and plaintiff appeals.

'Appeal from Jefferson Chancery Court. Heard before Hon. A. H. Benners. Bill by Warwick Saunders against R. N. McDonough and others, to restrain and enjoin the selling, pledging, or transferring of certain shares of capital stock and bonds of the Self-Flmxing Ore & Iron Company, and for an accounting and other relief. From a decree sustaining demurrers to the bill, complainant appeals. The averments of the bill sufficiently appear from the opinion of the court.

Heard before Hon. W. H. Simpson. Bill by R. A. Coffey, receiver, against J. W. Gay, and others. From a decree for respondent, complainant, as such receiver, attempted to bring this appeal.

Heard before Hon. W. H. Simpson. Bill by Janie Thomas and others, against J. C. Holden, to cancel a deed and mortgage, because executed by an insane person. From a decree sustaining demurrrers to the bill, complainants appeal.

<p> Bill to Declare Title to Ghurch Property, and to Sell Same. </p> <p>Appeal md Error; Review; Record; Presumption.- — Where depositions are omitted from the record and the decree does not negative the idea that the submission includes the deposition, it will be presumed on appeal that the decree was sustained by the proof, although in the formal application of solicitors' for both parties for submission of the cause, depositions are mentioned as being in relation to the subjects on which the submission should be had.</p>

Heard before Hon. W. H. Simpson. Bill by Mollie Blanton against John Blanton for divorce. From a decree overruling demurrer and motion to strike, the bill, respondent appeals.

Heard before Hon. W. W. Whiteside. Bill by Thomas W. Coleman, Jr., as executor of L. H. Kaplan, deceased, against the National Jewish Hospital for Consumptives, -and others, seeking for the proper construction of the will, and to determine the beneficiaries named therein. From a decree declaring devices and legacies void for uncertainty, certain of the respondents appeal.

Heard before Hon. W. H. Simpson. Bill by James A. Anders against Randolph Sandlin and others, for the cancellation of a rent note, with cross bill by Sandlin for a judgment on the note. From a decre for respondent, and order of reference on the cross bill, complainant appeals.

<p>Appeal from Jefferson Chancery Court.</p> <p>Heard before Hon. A. H. Benners.</p> <p>Bill by Carlton G. Smith and others, against Julia P. Clark and others, filed in the chancery court of Jefferson county, for the partition or division of land lying wholly within Bibb county. Prom a decree overruling demurrers to the bill, respondents appeal.</p>

Heard before Hon. A. H. Benners. Bill by Abraham Van Houtan against H. H. Black and others, to quiet title to certain land. Judgment for respondents, and complainant appeals.

Heard before Hon. W. R. Chapman. Bill by Mrs. Emma Frederick against J. H. Hartley and others to cancel and annul a deed of conveyance executed by complainant to respondents, and for an accounting. From a decree sustaining demurrers as to the allegation of undue influence, but overruling them on other grounds, respondents appeal.

Heard before Hon. W. H. Simpson. Bill by James P. Cooper and others, against Emmet O’Neal and others, for the partition of land. From a decree overruling demurrers to the bill, respondents appeal.

Heard before Hon. A. H. Benners. Bill by the Tennessee Coal, Iron & Railroad Company against J. R. Kilgore, to quiet title. Certain facts were certified to the circuit court for trial by a jury, and on return of the finding of the jury in the circuit court, the chancellor entered a decretal order setting aside the verdict of the jury, from which the respondent appeals.

Heard before Hon. W. R. Chapman. Bill by Angeline Holloway against Georgia B. Skipper and others to cancel a deed as a cloud upon title. Decree overruling general demurrer to the bill, and respondents appeal. The deed sought to be canceled as a cloud was a certain deed drafted, signed, and acknowledged and filed for record by complainant in which respondents are named as grantees.

Heard before Hon. Thomas H. Smith.. In the administration of the estate in the chancery court, on a controversy between Jennie H. Bidwell as executrix, and Howard, D. Johnson and others, there was a decree awarding counsel fees to be charged as cost of the administration, and from this decree the executrix appeals.

Heard before Hon. H. A. Si-iarpe. Bill by J. C. McQuiddy, doing business under the firm name and style of McQuiddy Printing Company, .against S. P. King and others, to require them to satisfy the judgment against the National City Bank of Birmingham out of unpaid subscriptions to the stock ■of said bank. Decree for respondents'and complainants .appeal.

Heard before Hon. W. H. Simpson. Bill by Louis Braasch and others against Attie B. Worthington, and others, to remove the administration of an estate from the probate to the chancery court, for an accounting and collection of assets, and for cancellation of a will, and distribution of assets. Prom a decree sustaining demurrers to the bill, for misjoinder of complainants, the complainants appeal.

Heard before Hon. A. H. Benners. Bill by Florence Lee against the Jefferson County Building & Loan Association and another, to enforce the statutory right of redemption. From a decree sustaining the demurrer of one Ella Dial, filed to the bill, complainant appeals.

Heard before Hon. W. W. Whiteside. Bill by A. C. Love and others against W. W, Reynolds and others to sell lands for division and account for the rents and profits arising from the nse and occupation of said land. From a decree for complainants, respondents appeal.

Heard before Hon. W. W. Whiteside. Bill by Y. A. Cook, as administrator, against Silvey & Company, and others, to enforce a vendor’s lien. From a decree for complainant, respondent Silvey & Company appeals.

Heard before Hon. A. H. Benners. Bill by the Ben F. Barbour Plumbing & Electric Company against the Jefferson County Savings Bank to settle the priority of their respective liens and to subject to the payment of complainant’s judgment or claim the increased value of the property by reason of the improvements- added by complainant. From a decree overruling demurrers to the bill respondent appeals.

Heard before Hon. W. R. Chapman. Bill by J. W. Carroll against J. E. Henderson, to cancel mortgages because of payment of the debt and because the debt was infected with usury, and for an accounting, and in the alternative ■ for redemption by payment of any balance due. From a judgment for defendant, complainant appeals.

Heard before Hon. A. H. Benners. Bill by T. A. Lacey against R. B. Pearce and another for an accounting and to hold a mortgage as security for the payment of a certain note, and for the sale of the land in payment thereof in the event the note had not been paid. From a decree sustaining demurrers to-the bill, complainant appeals.

Heard before Hon. W. H. Simpson. Bill by Lucy Arnold against A. Collins Kirby to set aside and annul a deed on the grounds of fraud and duress and inadequacy of consideration. Decree for complainant and respondent appeals.

Heard before Hon. A. H. Benners. Bill by the First National Bank of Birmingham against John H. Minge, to enjoin the collection of a judgment and enforce an equitable set-off. From a judgment for complainant, defendant appeals. Minge had filed suit against the Faunsdale Oilmill with writ of garnishment to the First National Bank of Birmingham.

Heard before Hon. A. H. Benners. Bill by H. K. White against W. M. Drennen and others. Decree for complainant, and respondents appeal. The bill contained the statutory averments, and prays for the quieting of the title.

Heard before Hon. A. H. Benners. Bill by W. O. Lanning and others, against the Hannis Distilling Company to perpetually enjoin respondents and the sheriff from proceeding against complainants under a judgment rendered by a law court in a garnishment proceeding, wherein they were sureties for the judgment defendant. From a decree for complainants, respondents appeal.

Heard before Hon. W. H. Simpson. Bill by H. E. McAdams against R. V. Windham to vacate a judgment against him in a court of law. Decree for respondent and complainant appeals^

Heard before Hon. E. S. Lyman. Bill by W. H. Adams against A. G-. Embry to cancel a deed for fraud and remove it as a cloud upon complainant’s title. From a decree overruling demurrer to the bill, respondent appeals.

Heard before Hon. Henry B. Foster. Bill by J. W. Robertson and others against W. E. Robertson and others, for the purpose of haying dower .assigned to widow. From a decree granting relief, respondents appeal.

Heard before Hon. A. H. Benners. Bill by Lillie Smith against J. M. Gibson and others, to determine title to land. Decree for respondents and complainant appeals.

Walker Law and Equity Court. Heard before Hon. T. L. Sowell. Bill by T. L. Long, against B. J. Franklin and a trust company to enjoin the company from surrendering to Franklin certain notes and mortgages, and for an accounting. From an order refusing to dissolve the temporary injunction, the respondent Franklin appeals.

<p>Appeal from Cullman Chancery Court.</p> <p>Heard before Hou. W. H. Simpson.</p> <p>Proceedings by the mayor and town council of Vinemont against certain taxpayers of the town to collect the municipal taxes. Prom am interlocutory order restraining the further attempt to collect the taxes, pending a continuance of the cause, the town authorities appeal.</p>

<p>Appeal from Jefferson Chancery Court.</p> <p>Heard before Hon. A. H. Benners.</p> <p>Bill by the Fidelity Mortgage Bond Company against W. M. Morris and others for an accounting, cancellation of a deed, and sale of property to pay debts and to declare a deed a general assignment. From a decree sustaining demurrers to the amended bill, complainant appeals.</p> <p>For the case as made by the original bill see Morris et al. v. Fidelity Mortgage Bond Co., 187 Ala. 262, 65 South. 810.</p> <p>The bill ivas amended by striking paragraph 6, and substituting therefor the following: That the claims of' complainant were in existence when said conveyance was made; that complainant was informed and believes that the aforesaid property constituted all the property owned by the said W. M. Morris capable of being subjected to the payment of his debts; that said Morris, was not the owner of the property conveyed to him by P. O. McGlathery and T. C. McGlathery on March 28, 1910, a part of the consideration for which was the assumption óf the mortgage indebtedness which complainants now seek to recover, said property having been conveyed by said Morris to Mattie Dodge on January 30, 1911; and that complainant believes that said Morris is insolvent, and that, if said conveyance was without consideration, it was a preference.</p> <p>The original paragraph 6 was that said property constituted all, or substantially all, of the property owned by the said Morris capable of being subjected to the payment of his debts, and that the claims of complainant were in existence when said conveyance was made., and that complainant believes that- said Morris is insolvent, and that, if said conveyance was without consideration, it was a preference.</p>

Heard before Hon. H. A. Sharpe. Bill by Gfuiseppe Manfredo and another, against Celestina Manfredo to remove an administration from the probate to the chancery court and to determine their interest in said property, with a cross-bill by respondent seeking to set aside certain deeds. From a decree dismissing the original bill and granting the prayer of the cross-bill, complainants appeal.

Morgan Chancery Court. Heard before Hon. W. H. Simpson. Bill by Huntsville Lumber Company to enjoin the Southern Railway Company from taking up and removing certain tracks. Decree for complainant, and respondent- appeals.

<p> Assumpsit. </p> <p>1. Contract; Dependent or Independent Covenants. — Whether or not stipulations in contracts are dependent or independent covenants depends on the intention of the parties, ascertainable from the contract and the surrounding circumstances at the time of its execution, though it is presumed that performance of respective acts shall be in the order of time indicated by the covenants.</p> <p>2. Same; Instruction; Intention. — In construing a contract, the court will endeavor to ascertain the intent of the parties, and give effect thereto, if lawful.</p> <p>3. Same; Mutual and Dependent Covenants. — Where a thing is to be done by one party as the consideration of a thing to be done by the other, the covenants are mutual and dependent, if to be performed at the same time, and, where one is first to be performed as the condition of the obligation of the other, that which is first to be performed must be done or tendered before suit is maintainable against the other party.</p> <p>4. Trial; Directing Verdict;' Justification.- — The giving of the general affirmative charge for defendant on an amended count of a complaint cannot be justified on the ground that error was committed in allowing the count to be amended over objection.</p> <p>5. Corporation; Sale of Stock; Contract. — -A contract of sale of corporate stock providing that the stock shall be paid for in dividends of the corporation after payment of its present indebtedness, but the price shall bear interest only after accrual of dividends, that in the event the seller shall desire to sell his interest in the corporation within a specified time he shall have an option to purchase the stock of the buyer for a certain sum, and that on the buyer voluntarily severing his connection with the corporation within a specified time, he shall surrender stock, makes payment of the price from accruing dividends, after discharge of the indebtedness, a condition precedent to any obligation on the seller to transfer the stock or to any right in the buyer to require the transfer.</p> <p>6. Same. — Where the seller of stock sold the same but ref used to account to the buyer with right to demand a transfer on payment of the price for the stock out of the dividends within a specified period, and the buyer agreed shortly before the expiration of that period that the seller might sell the stock to such third person and account for the price obtained, the promise of the seller to account was supported by a consideration consisting of the buyer’s surrender of his right to demand a transfer of the stock on payment therefor from divi■dends, and the buyer could enforce the promise unless he consented to a rescission of the sale made by the seller.</p> <p>7. Same. — Where stock was to be jiaicl for in dividends of the corporation after the discharge of a present indebtedness, and the seller sold the stock to another before payment of the price, the seller did not thereby relieve the buyer of the obligation to pay the price from dividends, and the buyer could not maintain an action for breach of the contract without first performing the condition precedent of paying the price from the dividends.</p> <p>8. Same; Action for Breach; Performance of Condition Precedent. —A complaint in an action on a contract which requires performance by plaintiff within a specified period, which alleges performance before bringing the action, which action was instituted sometime after the specified period, does not allege' performance of the condition precedent within a stipulated period.</p>

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. John O. Pugh.</p> <p>Assumpsit by A. B. Rains against John W. Patton. Judgment for defendant, and plaintiff appeals.</p> <p>The complaint contained the common count, and certain counts claiming damages for breach of the contract, which is set out in the opinion. The defense set up was that of the statute of frauds.</p>

<p>Appeal from Andalusia City Court.</p> <p>Heard before Hon. Ed T. Albritton.</p> <p>Assumpsit by J. M. Robinson, Norton & Company against J. M. Head. .Judgment for plaintiff, and defendant appeals.</p>

<p>Certiorari to Court of Appeals.</p> <p>Petition for certiorari by Goldberg & Leivis to review and revise the judgment of the Court of Appeals in the case of Stone v. Goldberg cG Leiois, 10 Ala. App. 185, 65 South. 151.</p>

<p>Appeal from Morgan Circuit Court.</p> <p>Heard before Hon. A. H. Alston.</p> <p>Action by Charles S. McCalley against James E. Penney. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals.</p> <p>The charges complained of as given for defendant are as follows: (5) If there is a single member of this jury who, after considering all the evidence in this case, does not believe that plaintiff ought to recover a verdict, then you should not render a verdict against defendant.</p> <p>(3) As a circumstance to which you may look in connection with all the other evidence in this case in determining whether defendant agreed with plaintiff to let him have the farm as is alleged in pleas 4 and 5 filed in this cause, you may look to the fact, if it be a fact, that plaintiff collected rents from some of the tenants on said land for the year 1903.</p>

<p> Assumpsit. </p> <p>■ 1. Sales; Contract; Delivery. — Where plaintiffs agreed to sell and ■defendants agreed to buy 2,500 logs to be delivered in three equal installments between November 1, 1913, and April 1, 1914, and the contract provided that defendants shall give four weeks notice of the time each delivery is to be made, but must call for and accept the first delivery by January 1, 1914, the defendants, on December 26, 1913, having notified plaintiffs that they did not want any of the logs, it was preparing to deliver as the first installment, plaintiff could make delivery thereof any time beforé April 1, 1914, and although they demanded delivery thereof to be made within four weeks from December 29, 1913, plaintiffs were not in default in tendering delivery •on February 2, 1914.</p> <p>2. Same. — Where the contract provided for delivery f. a. s. Mobile, •and provided that if at any time when plaintiff is authorized to make a delivery of the logs there should be no vessel in port ready to receive them, that the logs shall thereafter be held and handled -entirely at the expense of defendant, who must accept and pay for them as though delivery had been made f. a. s. at Mobile, such provisions was intended entirely for defendant’s protection, hence, plaintiffs were not required to tender the logs to defendant, but could hold them till the steamer was ready, the steamer to which defendants directed plaintiffs to make delivery not being ready at the stated time to receive the logs.</p>

Heard before Hon. E. C. Crowe. Action by G. W. Short and another against the Pratt Consolidated Coal Company for breach of contract to mine coal. Judgment for plaintiffs, and defendant appeals.

<p>Appeal from Bessemer City Court.</p> <p>Heard before Hon. J. C. B. Gwin.</p> <p>Action by Nelson Kimbrell against the Louisville & Nashville Railroad Company, for damages for being ejected from a passenger train. Judgment for defendant, and plaintiff appeals.</p> <p>The case made by the complaint is that the plaintiff took passage on one of defendant’s passenger trains at Marvell to go and be carried as a passenger to Gurnee Junction, both of which were stations on defendant railway, and that, when they reached a point about three miles from plaintiff’s destination, defendant’s conductor in charge of the train wrongfully and unlawfully ejected plaintiff from the train, and he had to walk three miles in the nighttime, and it raining, to reach his destination, wherefore he suffered the damages which are set out in extenso.- Plea 3 sets up general order No. 14, issued by the railroad commission of the state of Alabama on March 2, 1908, “applicable to all common carriers in the state of Alabama,” which order is set out in full, the second section of which is as follows: That, unless the passenger boards a train at a station where there is no ticket office, the carrier may charge and collect from such passenger 15 cents in addition to the price of the ticket at the agent’s rate.</p> <p>The inducement leading up to- the order is as follows: By virtue of certain agreements heretofore made between the state of Alabama and the Southern Railway, the Alabama Great Southern Railroad, the Mobile & Ohio Railroad, the Northern Alabama Railroad, and the Atlantic Coast Line Railroad, wherein it is provided that, in consideration of concessions made to- the above railroads in the passenger charges, the said railroads would, in the event of a lower charge being instituted in other states, establish and maintain a like charge in Alabama, and whereas certain of the above railroads have made known to the commission that they would on April 1, 1908, establish the charges named below in other states, and all of the above-named railroads made application for the promulgation of the necessary order to- put in operation said rates for Alabama, it is therefore hereby ordered, etc.</p> <p>The plea further alleges that Marvell was a ticket office station in charge of an agent for the sale of tickets to those desiring to- take passage on defendant’s train; and that the rate from Marvell to Gurnee Junction was 13 cents, and plaintiff did not purchase a ticket, but boarded the train without a ticket; that the conductor demanded the ticket which plaintiff failed or refused to give him, whereupon the conductor demanded of Mm the cash fare of 28 cents, the same being 13 cents for the regular fare and 15 cents additional as provided by said order, the said sum of 28 cents being the lawful and proper fare, which plaintiff refused to pay, whereupon the conductor in charge of the train ejected plaintiff therefrom using no more force than was necessary.</p>

<p> Injury to Servant. </p> <p>1. Master and Servant; Death of Servant; Complaint. — Where complaint alleged that deceased was employed by defendant company as a laborer in its mine, that the company failed in its duty negligently to provide a reasonably safe place in which to work, and that-as a proximate result thereof, deceased met his death, it states a cause of.' action under sections 2485-6, Code 1907.</p> <p>2. Death; Action; Damages. — In an action for wrongful death brought under the homicide statute, the damages recoverable are punitive and not compensatory.</p> <p>3. Master and Servant; Injury to Servant; Duty of Care. — The failure of the master to equip coal cars with safety appliances to prevent them from running back down the slope upon miners, when such cars got loose, constituted a defect in the ways, works, etc., within the meaning of section 3910, Code 1907.</p> <p>4. Same; Statute; Applicability. — Acts 1911, p. 500, is without application to the rights of the parties where the act was passed after the accident complained of.</p> <p>5. Same; Contributory negligence. — While the fact that the servant continued in the employment after knowledge of the defect cannot be shown as assumption of risk or contributory negligence under section 3910, Code 1907, yet the fact that the servant knowing of the danger of coal cars breaking loose on a slope, went upon the •slope, without precaution may be shown as contributory negligence.</p> <p>6. Same. — The fact that the mine slope was the only way of egress from the mine did not warrant a miner in going upon the slope without taking precautions to avoid runaway coal cars, where it.did not appear that the cars were being constantly drawn up the slope without safety appliances, so as to prevent egress within a reasonable time.</p> <p>7. Appeal and Error; Hevieio; Matters Presented. — 'Where the appeal is by the defendant, the propriety of the action of the court in overruling demurrers to the pleas will not be considered because favorable to the party appealing.</p> <p>8. Evidence; Opinion; Experts. — The determination of the qualification of a witness as an expert is a preliminary matter addressed to the sound discretion of the court.</p> <p>9. Same; Hypothetical Question. — While a hypothetical question propounded to an expert witness is objectionable, if it contains elements of fact not shown by the evidence, it is not rendered objectionable because it omits to hypothesize every fact.</p> <p>10. Swne. — The frame and substance of hypothetical questions to experts is a matter resting largely in the trial court’s discretion.</p> <p>11. Same — An expert may give his opinion as to the safety of a place or of an appliance.</p> <p>12. Master and Servant; Injury to Servant; Evidence. — Evidence of repairs made after an accident in which a servant was injured is not admissible.</p> <p>13. Same. — In the absence of a statute authorizing mine inspectors to make recommendations to mine operators, or enforce remedies, evidence that th.e mine inspector made certain suggestions to the mine operator, is not admissible in an action for the death of a miner.</p>

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard, before Hon. John C. Pugi-i.</p> <p>Action by Lillian Perrine agains the Southern Bitulithic Company and the City of Birmingham. There was a judgment for plaintiff as against the Southern Bitulithic Company and for the City, and the Southern Bitulithic Company appeals.</p> <p>Motion was made for a severance. The nature of the pleadings sufficiently appear from the opinion, as do several of the objections and exceptions to evidence. The following are the assignments of error mentioned in the complaint:</p> <p>(2) The court erred in overruling defendant’s objection, upon the ground that it was not responsive to the question, to the statement of the witness Mrs. Caldwell, as follows: “If you saw negroes working for that company every day as long as they were in front of my house, would you suppose any of those negroes would have any right to come there for any other company on the same company’s ground?” The question being, “Do you know it of your own knowledge?” (3) Overruling defendant’s objection to the following question put by plaintiff’s counsel to witness Webb: “Were there any repairs being done on Park Avenue on February 15th of this year?” (4) Same witness: “With whom did the city of Birmingham have a contract for paving Park avenue, February, 1911?” (5) Overruling motion of defendant to exclude the answer of the witness “the Southern Bitulithic Company.” (7) Overruling objection of the same witness, “But the Southern Bitulithic Company did perform this contract, did they not?” (8) Erred in admitting over the objection of this defendant the proposal of the Southern Bitulithic Company to do certain work referred to in the proposal. (9) Overruling defendant’s objection to the following question propounded .to the witness Webb: “Now, I notice in this proposal that 3,000 lineal feet of the curbing was to be taken up and reset. Just explain what that is, please.” (10) Overruling defendant’s objection to the following question to- witness Nicholson: “Did the Southern Bitulithic Company execute this portion of their proposal, which I have asked you to explain to the jury a moment ago, in words.and figures as follows: 3,000 lineal feet of curbing, reset at 10 cents per foot?” (11) Objection overruled to question to same witness: “Now, did that curbing mentioned in that contract extend along the south side of Park avenue from Nineteenth street to- Twentieth street?” (12) Overruling defendant’s objection to question to same witness: “What is the custom, under a contract like this, Avhen the contractor begins the work?” (14) Objection to question to the witness Robinson: “What were you.told by some of the men?” (15) “What did the workmen say to you?”</p>

<p>Appeal from Walker Circuit Court.</p> <p>Heard before Hon. J. J. Cuktis.</p> <p>Action by tbe Cordova Coal, Land & Improvement Company against L. B. Musgrove, for damages for breach of covenant of quiet employment. Judgment for plaintiff, and defendant appeals.</p>

<p> Improper Trcmsmission of Telegram. </p> <p>1. Appeal and Error; Review; Matters Presented. — The refusal of the court to strike from the complaint allegations of damages for which the law allows no recovery, is not reviewable error; nor is a complaint containing such allegation subject to demurrer on that account.</p> <p>2. Telegraphs and Telephones; Mista,loe in Transmission; Evidence. —Where the action was for a mistake in the transmission of a message, the correct message inquiring, “Can I get there in time to see her?” and the message as sent being, “Can’t get there in time to see her,” whereby she failed to see her dead sister, it was competent for plaintiff to show that after she sent the message, she began packing preparatory to going, and kept her things packed for several days thereafter.</p> <p>3. Same; Mental Anguish. — Testimony that the receipt by plaintiff of the news of the death of her sister made her sad, was not a proper way of proving mental anguish, superinduced by failure of the telegraph company to properly transmit her telegram, and thus preventing her from seeing her sister.</p> <p>4. Appeal and Error; Harmless Error; Evidence.- — While the fact that the news of the death of her sister made plaintiff sad, was not a proper method of showing mental anguish, yet such matter was collateral and to be inferred from the relation of the parties, in the absence of evidence to the contrary and its admission was consequently harmless.</p> <p>5. Same; Presumptions; Sustaining Demurrer. — Where the judgment entry showed that demurrer was sustained to defendant’s plea, but the demurrer was not set out or apparent, the ruling will be sustained on appeal if such plea was subject to any ground of demurrer.</p> <p>C. .Same; Harmless Error; Pleading.- — Where the general issue was otherwise pleaded, the sustaining of a demurrer to a plea of the general issue was not prejudicial.</p> <p>7. Telegraphs and Telephones; Transmission; Túrne of Piling Olaim. —Where the action was for damages for incorrectly transmitting a message, a plea setting up, as a part of the contract of sending, the stipulation that the company would not be liable where the claim was not presented within sixty days after the message was filed, and averring that the claim which was peculiarly within the knowledge of plaintiff, was not presented in writing within 60 days, after said message was filed, was technically bad for failing to aver that plaintiff did not present her claim to defendant company.</p>

<p>Appeal from Tuscaloosa County Court.</p> <p>Heard before Hon. H. B. Foster.</p> <p>Action by Drewry, Hughes & Co. against the Alabama Great Southern Railroad Company. The complaint was amended by substituting IT. Altman & Co. and others as plaintiffs, for use of Drewry, Hughes & Co. From a judgment for plaintiffs, defendant appeals.</p> <p>As originally filed, the complaint was for $1,327.61, for the failure to deliver certain goods — to wit, 28 cases of Caledonia outing — received by defendant as common carrier to be delivered to the following parties: (Here follows the number of cases consigned to each party and the name of the party to whom the different consignments were made). This suit was by Drewry, Hughes & Co., a corporation, against the Alabama Great Southern Railroad Company. As amended, the complaint was subdivided, and each party to whom a consignment was made was substituted as a party plaintiff: suing for the use of Drewry, Hughes & Co., a corporation, and was brought for the amount of goods consigned to that particular party; each count in the complaint being the same, except as to' the party plaintiff and the amount, that being governed by the consignee to Avhom the goods were shipped and the number of cases shipped to such consignee. The demurrers raise the question of the legality of the action against defendant, and the other question decided in the opinion.</p>

<p> Death Action. </p> <p>1. Railroads; Person on Train; Plea; Violation of Rule. — Where the action was for the death of a brakeman employed by another railroad company while on a train being operated over defendant’s line of road, a plea setting up a violation by deceased of a rule of his employer, but not setting up any facts to show that such rule was made for defendant’s benefit, or that it was in any way connected therewith, and the plea setting up the violation of the rule of defendant without showing facts making the decedent subject thereto, were demurrable.</p> <p>2. Pleading; Fact or Conclusion; Contributory Negligence. — Pleas that the decedent negligently rode upon the engine were not good as pleas of contributory negligence, as the averment of negligence was a mere conclusion.</p> <p>3. Railroad; Injury to Third Person; Negligence. — It cannot be said as a matter of law that it was negligent for deceased brakeman to ride on the engine.</p> <p>4. Same; Evidence. — Where the action was for the wrongful death of a brakeman employed by another company, caused in a collision on defendant’s line, and the conductor of defendant’s train had stated that he had not worked for the defendant since the collision, the exclusion of evidence as to whether he was laid off by defendant on the morning of the accident, was not reversible error.</p> <p>5. Witnesses; Examination; Bias. — If it be conceded that the fact that witness had been laid off by defendant was a circumstance showing his ill feeling against defendant, and affecting his credibility, the purpose of such question should have been suggested by asking the witness as to his state of feeling towards defendant, and if the witness said it was good, then by a resort to facts and circumstances tending to show his bias, such as that he was laid off by defendant on the morning of the accident.</p> <p>6. Railroads; Injury to Third Persons; Jury Question. — Under the evidence in this case, it was for the jury to determine the issue of wanton negligence, and whether the conductor of defendant whose watch showed the correct time, read it correctly.</p> <p>7. Same; Negligence; Company Liable. — The fact that the conductor of defendant’s train read his watch wrong, and in reliance thereon ran his train in violation of orders, was negligence on his part, rendering his company liable, if the death resulted proximately therefrom.</p> <p>8. Same; Instruction. — A charge asserting that in arriving at the verdict the jury might consider in connection with all the other evideuce, the fact that the life of the engineer of defendant was in danger, in the event of a collision in determining whether his conduct was wanton or wilful, was not only argumentative but singled out the parts of the evidence.</p> <p>9. Same. — A charge that the damage, if any, was such sum as would sufficiently punish defendant for the wrongful acts of its servants, which sum would not be increased because the widow of the deceased would get the amount assessed by the jury as punishment, was clearly bad.</p>

Heard before Hon. John H. Miller. Action by J. Lucian Thompson against the Standard Portland Cement Company. Judgment for plaintiff, and defendant appeals. Count 4 is indicated sufficiently in the opinion.

Heard before Hon. John H. Disque. Action by Zimmett Jones and others, by their next ■friends, against the Myrick Lumber Company, for trespass to realty and for the statutory penalty for cutting-trees. Judgment for defendants, and plaintiffs appeal.

Heard before Hon. W. W. Hakalson. Action by A. L. Atwood against tbe American Oak Leather Company for damages to a gasoline boat. Judgment for plaintiff, and defendant appeals to1 tbe Court of Appeals, and tbe case was transferred to tbe Supreme Court under tbe act creating tbe Court of Appeals.

<p> Trespass to Realty. </p> <p>1. Logs and Logging; Sale of Timber; Bight of Entry. — Where an owner conveyed standing timber with a right of entry for removal, the right of entry was incidental and could not exist apart from the ownership of the timber; hence, one to whom the grantee conveyed only his timber rights was without right of entry, and entry constituted a trespass.</p> <p>2. Same. — One to whom the owner conveyed standing timber with a right of entry for cutting and removal was not authorized to operate a turpentine orchard on the land.</p> <p>3. Same; Possession. — An owner who conveyed all the standing timber on the land with a right of entry for cutting and removing, was in actual possession of the land as against one to whom his grantee conveyed only the timber rights, and hence, was in actual possession of the timber therein.</p>

Heard before Hon. John C. Pugh. Action by Mary B. Brown against Birmingham Waterworks Company, for damages for cutting off water supply. Judgment for plaintiff, and defendant appeals.

Heard before Hon. C. P. Almon. Action by Carlos Terry against tbe Sloss-Sheffield Steel & Iron Company, for damage sustained while in its employment. Judgment for plaintiff, and defendant appeals. The case was submitted on counts 7, 10, 11, 12, 13, and 14 of the amended complaint.

Heard before Hon. Thomas W. Wert. Action by Ollie Jones, as administrator, against the Louisville & Nashville Railroad Company for damages for the death of his intestate. Judgment for plaintiff and defendant appeals. The complaint and the facts sufficiently appear from the opinion of the court.

Heard before Hon. Cecil Browne. Action by Dora Hubbard as administratrix against Coffin & Leak, receivers, for damages for death of her intestate alleged to be an employee of defendant. Judgment for defendant, and plaintiff appeals.

Heard before Hon. D. W. Speake. Action by Minnie M. Godwin against the Louisville & Nashville Railroad Company, for damages for injury while a passenger. Judgment for plaintiff and defendant appeals.

Heard before Hon. John H. Disque. Action by A. Brown against the Alabama Great Southern Railway Company for damages for obstructing natural flow of water. Judgment for defendant, and plaintiff appeals.

Heard before Hon. D. W. Speake. Action by Eliza A. Orendorff against Lawrence W. Norton and another, for damages for destroying a lien. Judgment for plaintiff and defendant Norton appeals. Transferred from Court of Appeals under the act establishing such court.

Heard before Hon. Thomas W. Wert. Action by John G. Gray against the Louisville & Nashville Railroad Company, for damages for injury while in its employment. Judgment for plaintiff, and defendant appeals.

Heard before Hon. C. P. Almon. Action by John W. Davis against R. N. McColloch and others.

Heard before Hon. D. W. Speake. Action by Daniel J. Phillips, pro ami, against the City of Huntsville and others. From a judgment for plaintiff, the City of Huntsville appeals.

Heard before Hon. C. B. Smith. Action by Louise Manley, as administratrix, against the Birmingham Railway, Light & Power Company for the death of her intestate, John T. Manley. Judgment for defendant, and plaintiff appeals. The first count declares on subsequent negligence in that the motorman failed to use all means at his command to prevent the cars from running- against plaintiff’s intestate after becoming aware of his peril.

Heard before Hon. C. W. Ferguson. Action by Mrs. Amy Carle against the City of Birmingham and another, for damages from a fall on the street. From a judgment for plaintiff against defendant city, it appeals.

Heard before Hon. C. W. Ferguson. Suit by Josephine Barfield against the South Highlands Infirmary and another, for damages for alleged malpractice. Judgment for defendants, and plaintiff .appeals. The facts appear in the opinion of the court.

Heard before Hon. Samuel B. Browne. Action by Fannie Tucker against the Mobile Infirmary Association for damages for personal injury while being treated at said institution. Judgment for defendant on the pleadings, and plaintiff takes nonsuit, and brings this appeal. The following is the complaint: Count 1.

Appear from Birmingham City Court. Heard before Hon. John C. Pugh. Action by W. H. Bason against tbe Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals.

<p>Appeal from Bessemer City Court.</p> <p>Heard before Hou. J. C. B. Gwin.</p> <p>Action by Mrs. M. E. Irvin, as administratrix, against tbe Southern Railway Company and its engineer, for damages for the death of her intestate while on defendant’s track. Judgment for plaintiff and defendant railroad company appeals.</p>

<p> Damage for Death, in Mine. </p> <p>1. Death; Action; Evidence. — ’Where the action was for the death of a boy under fourteen, based on the ground solely that his death had resulted proximately from his employment in a mine contrary to the prohibition of section 1035, Code 1907, evidence, while the counts and the pleas raising the question as to negligence and contributory negligence remained in the case, that deceased was earning 75 cents a day, that he was an obedient boy, and not given to roving or idleness, was admissible on the measure of damages recoverable under the issue so made, notwithstanding such counts and pleas were subsequently eliminated.</p> <p>2. 'Trial; Evidence; Motion for Trial. — If a defendant apprehended prejudice from evidence admitted under certain issues, then present in the case, but which were afterwards eliminated, defendant should have moved to strike such evidence, or to exclude the same.</p> <p>(Mayfield and Sayre, JJ., dissent.)</p>

Heard before Hon. J. C. B. G-win. Action by J. M. Reid against the Sloss-Sheffield Steel & Iron Company, for damages for injury while engaged in its employment. Judgment for plaintiff, and defendant appeals.

Heard before Hou. J. C. B. Gwin. Action by James A. Hatcher against the Southern Railway Company for the wrongful ejection of plaintiff as a passenger, such ejection occurring in Shelby county, where defendant had an agent or agents. Prom a judgment abating the action, plaintiff appeals. Affirmed.

<p> Failure to Furnish Gas. </p> <p>1. Pleading; Construction; Admission. — -A failure on the part of a party to deny circumstances calling for a denial, authorizes the court to assume that the circumstances are against him.</p> <p>2. Gas; Meter; Custody. — Where the consumers of gas agreed to be liable for money placed in a prepayment meter, and afterwards sublet that portion of the premises where the meter was installed, thus depriving themselves of the custody of the meter, such subletting did not relieve them of the burden of their contract.</p> <p>3. Same. — Where the consumer sublet that portion of the premises where the meter was installed, with the consent of the gas company, the consumer having agreed to be liable for all monies paid in a prepayment meter, the consent of the company to their subletting did not free them from liability for the monies placed in such meter.</p>

Heard before Hon. John H. Miller. Action by Fred Smith against the Alabama Great Southern Railroad Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. John C. Pugh. Action by C. C. Athey, as administrator, against the Tennessee Coal, Iron & Railway Company, and the city of Birmingham, for damages for the death of a child by drowning. Judgment for defendant on directed verdict, and plaintiff appeals.

<p>Appeal from Montgomery Chancery Court.</p> <p>Heard before Hon. L. D. Gardner.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. Gaston Gunter.</p>

<p>Cektiorari to Court of Appeals.</p>