Volume 208 — Alabama Reports

Petition of the State of Alabama, on the relation of its Attorney General, for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in the case of Leslie Whatley v. State of Alabama.

Jones, Judge. Action by W. P. Russell, as administrator, against Eva F, Garrett, as executrix, for damages for breach of agreement. From judgment overruling demurrers to pleas, plaintiff takes nonsuit and appeals. Written contract cannot be váried by oral agreements made at the sáme time. 98 Ala. 260, 13 South. 48; 81 Ala. 253.

<p>Appeal from Oircnit Court, Clay County; W. L. Longshore, Judge.</p> <p>Action by the Southern Tire & Accessories Company against E. W. Wilson. From a judgment for defendant R. H. Eggleston, as trustee in bankruptcy of the plaintiff, appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.</p> <p>Charges 2 and 4 requested by plaintiff and refused by the trial court read:</p> <p>(2) I charge you as a matter of law, gentlemen of the jury, whether in fact E. W. Wilson was a partner or not with C. R. Vann in the Day and Night Auto Repair Company, if he permitted himself to be held out as a partner, and plaintiff contracted with the firm of Day and Night Auto Repair Company on the faith that E. W. Wilson was a partner, in that event E. W. Wilson would be liable, and you must find a verdict in favor of the plaintiff.</p> <p>(4) If the jury is reasonably satisfied from ihe evidence that E. W. Wilson permitted himself to be held out as a partner in the firm of Day and Night Auto Repair Company, whether in fact he was a partner or not, and the plaintiff contracted with the firm on the faith that he was a partnfer, and sold and shipped Day and Night Auto Repair Company the goods, wares, and merchandise which are the foundation of this suit, then E. W. Wilson is liable in this action, and you should return a verdict in favor of the plaintiff.</p> <p>A scintilla of evidence takes the issue to the jury. 204 Ala. 297, 85 South. 535; 18 Ala. App. 113, 89 South. 827; 172 Ala. 604, 55 South. 801; 144 Ala. 316, 39 South. 374; 17 Ala. App. 280, 84 South. 628; 57 South. 50. In actions against partners, parties will be held to be partners, as to creditors, upon slighter proof than is necessary to establish the relation between themselves. 9 Ency. Ev. 553; 114 Ala. 647, 22 South. 24; 80 Ala. 136; 12 Ala. 788. Proceedings before a justice of the peace should be proven by the docket or papers themselves, or by certified copies thereof, and parol evidence is not admissible to contradict or vary same. 22 C. ,T. 968 ; 95 Ala. 9,. 11 South. 308; 18 Ala. 105; 63 Ala.'19; 17 Ala. App. 229, 84 South. 503. The appellee was liable to appellant if, at the time the debt was contracted, lie permitted himself to be held out as a partner, whether in fact he was a partner or not. 96 Ala. 222, 11 South. 390; 85 Ala. 19, 4 South. 639; 95 Ala. 101, 10 South. 394; 132 Ala. 253. 31 South. 81, 90 Am. St. Rep. 907; 78 W. Va. 76, 85 S. E. 22.</p> <p>The affirmative charge should be given, if the evidence is not sufficiently strong to warrant the jury in rendering a verdict for the plaintiff. 5 Mayf. Dig. 150; 6 Mayf. Dig. 104; 172 Ala. 604, 55 South. 801; 94 U. S. 278, 24 L. Ed. 59; 22 Wall. 122, 22 L. Ed. 780; 1 Wall. 369, 17 L. Ed. 642.</p>

W. Haralson, Judge. Action by Lizzie Stephens, as administratrix, against John C. Bean, for the wrongful death of George Stephens. From a judgment for plaintiff, defendant appeals.

A. Pearce, Judge. Action by J. T. Capps, as executor, against tbe-First National Bank of Abbeville. From a judgment for plaintiff, defendant appeals. .Suit by appellee as executor of tbe estate of M. V. Capps, deceased, against tbe Hirst National Bank of Abbeville, to recover a sum of money deposited in said bank by M. Y. Capps to bis individual credit. M. V. Capps was a member of a partnership doing business under tbe firm name of Pioneer Peanut Oil Company.

Greene, Judge. Proceeding under the Workmen’s Compensation Act by Yelma House and minor child,, for the death of the husband and father respectively, opposed by tbe Louisville & Nashville Railroad Company, employer. From a judgment of the Circuit Court granting an award, the employer brings certiorari.

A. Pearce, Judge. Action by J. T. Capps, as executor, against the First National Bank of Abbeville. From a judgment for plaintiff, defendant appeals. The complaint was demurrable in failing to allege that the certificate sued on was properly indorsed when demand was made for payment. 206 Ala. 394, 90 South. 340; 120 Ala. 535, 28 South. 517; 7 Ala. 475 ; 33 Minn. 399, 23 N. W. 552; 40 Vt. 380; 128 Iowa, 275, 103 N. W. 777: 193 Ala. 246, 69 South. 432.

<p>Appeal from Circuit Court, Cherokee County; W. W. Haralson, Judge.</p> <p>Bill by A. H. Coker and others against W. H. Coker, as executor of the estate of John W. Coker, and others, for removal of the estate from probate to equity court, with petition by Dortch & Allen for allowance of attorney’s fees. From a decree allowing compensation to the attorneys, the executor appeals.</p> <p>It not appearing from the averments of the petition that the services rendered were for the common benefit of all the parties, the demurrer should have been sustained. 176 Ala. 151, 57 South. 776; 191 Ala. 195, 67 South. 985; 205 Ala. 219, 87 South. 354.</p> <p>Where there is a common trust or fund, and suit is instituted by one for the benefit of all, it is not just that one alone should bear the burden. 191 Ala. 195, 67 South. 9S5 ; 195 Ala. 547, 70 South. 685; 82 Ala. 213, 2 South. 760; 70 Ala. 534; 105 U. S. 027, 26 L. Ed. 1157; 113 ü. S. 116, 5 Sup. Ct. 3S7, 2S L. Ed. 915. Where there are two final decrees the first can only he reviewed, when appeal has not been barred. 176 Ala. 445, 58 South. 426; 132 Ala. 131, 31 South. 474.</p>

Petition by the Alabama Public Service Commission for mandamus to the Western Union Telegraph. Company requiring obedience to an order of the petitioner directing the continuation of telegraphic service to certain towns in the state of Alabama. From a judgment denying the writ, petitioner appeals. For brief, see State of Alabama v. W. U. T. Co., ante, p. 228, 94 South. 466. For brief, see State of Alabama v. W. U. T. Go., ante, p. 228, 94 South. 466.

B. Smith, Judge. Action by M. J. Sliearin against Lonis Pizitz. Judgment for defendant and plaintiff appeals.

<p>Receivers <&wkey;92—Order held to authorize operation of plant.</p> <p>An order, authorizing a receiver to pay off all rent liens on the property of the corporation for which appointed, and to pay for and install machinery for “operation” of its plant, and to preserve and care for the property, held to authorize operation of the plant and the employment of the proceeds of receiver’s certificate for that purpose.</p>

, Appeal from Circuit Court, Etowah County; O. A. Steele, Judge. Action by H. A. Brothers against Israel Brothers, for slander and trespass. From a judgment for defendant, plaintiff appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.

C. B. Gwin, Judge. Action by H. O. Caldwell and Fannie Caldwell against the United States Cast Iron Pipe & Foundry Company and others for damages. From a judgment for plaintiff, the named defendant appeals. Plaintiffs sue for damages for the death of their intestate through the negligence of defendants.

Jones, Judge. Petition by Lewis G. Blackwell for probate of the will of Sarah J. Brown, with contest by Howard B. Merritt. Erom a decree granting the probate, contestant appeals. The judgment was rendered on September 15, 1920. Security for cost 'of appeal was filed October 15, 1920. On May 10, 1921, notice of appeal was filed. A bill of exceptions was presented and signed on December 10, 1920, and the case filed in the Supreme Court on May 14, 1921.

Martin, Judge. Bill by Walter Glenn and others against C. W. Miller, for specific performance of a contract of conveyance. From a decree granting relief, defendant, appeals. In suits for specific performance of parol contracts respecting the sale of lands, the contract must be distinctly, definitely, and precisely averred. 88 Ala. 340, 6 South. 747; 113 Ala. 228, 20 South. 964; 137 Ala. 572, 34 South. 622; 155 Ala. 644, 47 South. 80; 57 Ala. 625.

P. Agee, Judge. Action by Arthur J. Bunch against J. G. Garner, as executor of the estate of R. E. Garner, deceased, for breach of a contract. After adverse ruling on the pleading, plaintiff takes a nonsuit and appeals. The agreement declared on in the first six counts of the complaint did not contravene the statute of frauds, and was binding. 86 Ala. ISO, 5 South. 578; -10 Cyc. 269; 156 Ala. 557, 46 South. 977, 16 Ann. Cas. 529; 144 Ala. 666, 39 South. 562.

P. Agee, Judge. Suit by Minnie G. Beason against the Sovereign Camp of the Woodmen of the World. From a judgment for defendant, plaintiff appeals.

Q. Smith, Judge. Action for damages by Mrs. J. H. Blythe against the Steele-Smith Dry Goods Company. Prom a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 449, § 6. The complaint charges that the defendant operated a café; that plaintiff was served with food for which she paid; that said food was unwholesome, the eating of which made the plaintiff ill.

E. Kumpe, Judge. Proceeding by W. A. Alexander to probate the last will and testament of L. A. Alexander, deceased, with contest by Myrtle Alexander. Erom a judgment denying probate proponent appeals.

A. Steele, Judge. Action by W. G. Gilliland, by bis next friend, against Dave Thompson. From a judgment for plaintiff, defendant appeals When one party litigant is permitted to offer evidence on a given issue in a cause, the other party should be allowed to give his version of the same matter. 144 Ala. 373, 39 South. 654. Threats made by the plaintiff against the defendant may be material evidence in a case of assault and battery. 5 C. J. 678; 17 Ala. 664.

Locke, Judge. Bill by Samuel T. Barnett against Sterling A. Wood and others for sale of land for division. From a decree overruling demurrer, respondents appeal. Ip. a bill for partition, the respective interests of the parties must be alleged. 196 Ala. 151, 71 South. 996; 204 Ala. 31, 85 South. 431.

Brickell, Judge. Bill by Lillie B. Christian against Willie McConnell and others for the sale of lands for division. From a decree dismissing the bill, complainant appeals. Partition is a matter of right, and may be compelled by any tenant having a legal or equitable title and actual or constructive possession. 183 Ala. 544, 62 South. 776; 187 Ala. 165, 65 South. 381; 90 Ala. 164, 8 South. 715, 24 Am. St. Rep. 778; 98 Ala. 363, 11 South. 743, 39 Am. St. Rep. 67.

<p>Appeal from Circuit Court, Houston Coun. ty; H. A. Pearce; Judge.</p> <p>Action in detinue by the Motor Sales Company against A. B. McNeill. From a judgment for plaintiff, defendant appeals. Transferred from Court of Apjpeals under section C, Acts 1911, p. 449.</p> <p>If plaintiff did not take possession of the car, and his contract was not recorded within 30 days after removal of the car to Alabama, the contract was void, and plaintiff was not entitled to recover. 3 Ala. App. 634, 57 South. 122; 187 Ala. 533, 65 South. 783, .Ann. Cas. 1916A, 877; Code 1907, § 3394; 102 Ala. 304, 15-South. 528; 87 South. 923.</p> <p>Brief of counsel did not reach the Reporter.</p>

<p>Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.</p> <p>Action by the Camp Hill Trading Company against the St. Louis-San Francisco Railway Company, the Central of Georgia Railway Company, and James C. Davis, as Director General, etc., for damages. From a judgment for plaintiff against the Central of Georgia Railway Company and the Director General, said defendants appeal. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.</p> <p>The burden is on the plaintiff to show that the animal, when delivered to the receiving carrier, was in good condition. 145 Ala. 686. Railroad corporations cannot be sued for the wrongful acts or omission of the .Railroad Administration in the operation of transportation systems during the period of governmental control. 256 U. S. 41, 41 Sup. Ct. 425, 65 L. Ed. 819; 206 Ala. 341, 89 South. 710; 17 Ala. App. 623, 88 South. 196; 206 Ala. 463, 90 South. 311.</p> <p>The complaint was not subject to demurrer. Code 1907, § 5548; 16 Ala. App. 569, 80 South. 143. If the defendant Central of Georgia Railway Company is not liable, the judgment for that reason should not be remanded, but should be corrected as to it, and affirmed as against the Director General alone. 126 Miss. 812, 89 South. 148; Code 1907, § 2S90.</p>

C. B. Gwin, Judge. Action for damages by M. L. Watson against the Louisville & Nashville Railroad Company. Erom a judgment for plaintiff, defendant appealed to the Court of Appeals, from which the cause was transferred to the Supreme Court under Acts 1911, p. 450, § 6.

Briekell, Judge. Bill by Lillie B. Christian against Emmett Loyd and others. From a decree for complainant, respondents appeal. Complainant, having a pecuniary interest in the result of the suit, was incompetent as a witness to testify as to a transaction with A. AV. Loyd, whosp estate is interested. Code 1907, § 4007; 152 Ala. 248, 44 South. 552; 136 Ala. 562, S3 South. 939; 131 Ala. 43S, 31 South. 77.

A. Locke, Judge. Bill by the Peters Mineral Land Company against John DeB. Hooper and others, to quiet title to lands, etc. From a decree sustaining demurrers to the bill complainant appeals. The bill alleges that the complainant is in the peaceable possession of and owns certain lands, in Jefferson and Walker counties, Alabama, title to which is deraigned through mesne conveyances from Thomas P. Henley.

<p>Appeal from Circuit Court, Jefferson County ; C. B. Smith, Judge.</p> <p>Action by W. P. Hickman against D. E. Mitcbell to recover balance of purchase money for sale of land. From a judgment for plaintiff defendant appeals.</p> <p>The purchaser of mortgaged premises does not become personally liable for the debts secured, unless there is a special contract to pay such incumberance. 2 Devlin, R. E. § 1047; 124 Mass. 254, 26 Am. Rep. 659.</p> <p>The undertaking of one person to pay the debt due from another, based on a valuable consideration, inures to the benefit of the original payee, and suit may be brought by the latter. 14 Ala. 263; 30 Ala. 599; 74 Ala. 370 ; 77 Ala. 217; 101 Ala..333, 13 South. 385; 196 Ala. 196, 72 South. 36. No objection can be allowed for defect of form in a pleading, if facts are so presented that a material issue can be taken by the adverse party thereon. Code 1907, § 5321; 129 Ala. 540, 29 South. 961; 169 Ala. 275, 52 South. 929, 28 L. R. A. (N. S.) 1106; 169 Ala. 213, 53 South. 315, 32 L. R. A. (N. S.) 8S9; 31 Cyc. 101.</p>

I. Jones, Judge. Bill by Louisa IP. Hawkins against Allen N. Grubbs and John C. Hawkins to cancel deeds. From a decree granting the relief prayed, respondent Grubbs appeals.

S. Williams, Judge. Action by Yancy Carroll, as administratrix of the' estate of Clifton Carroll, deceased, against the Atlantic Coast Line Railroad and others. From a judgment for plaintiff, the named defendant appeals.

J. Curtis, Judge. Action in ejectment by J. T. Allumns against O. A. Allumns. From a judgment for defendant, plaintiff appeals. The instrument relied upon by the plaintiff is as follows: Warranty Deed. The State of Alabama, Walker County.

Locke, Judge. Bill by Tom Peters Henley against the Masonic Temple Association, the City of Birmingham, and the County of Jefferson, to establish a trust in lands. Erom a decree sustaining demurrer, complainant appeals. Property impressed with a trust, or the proceeds thereof, may be followed as long as it can he identified in the hands of subsequent holders who are not bona fide purchasers. 196 Ala. 25, 71 South. 335; 200 Ala. 329, 76 South. 95.

<p>1. Vendor and purchaser i@=^95(2)—Nonpayment of amounts due held waived by vendor’s agreement to lease for vendee’s benefit.</p> <p>Vendee’s failure to pay certain amounts due under the contract, including municipal assessments, helé waived by vendor,’s agreement to take charge of and lease the property for vendee’s benefit and devote collections to the liquidation of his indebtedness, all of which was done.</p> <p>2. Vendor and purc,haser <&wkey;>95(2)—Vendor could treat contract as subsisting despite delay in payments, where course of dealing indicated no forfeiture would be declared.</p> <p>Where the1 whole course of dealing between vendor and vendee prior to the date of an alleged forfeiture by the latter was calculated to impress him with the idea that no forfeiture would be declared for delay in payments, he had the right to treat the contract as still subsisting.</p>

Locke, Judge. Bill by Mary Howard against the Alabama Enel & Iron Company. From a decree denying rehearing, complainant appeals. The act of 1915 was not intended to apply to rehearings in equity, nor to abrogate rule SI (Code 1907, p. 1553).

Suit by B. M. Allen and others against A. E. Overton and wife to cancel deeds. From a decree dismissing the bill, complainants appeal. Conveyances which are fraudulent as to existing creditors are fraudulent as to sub-' sequent creditors. 75 Ala. 363. If grantee-had notice of such facts and circumstances as would arouse suspicion of an ordinarily prudent person, this is sufficient notice of grantor’s fraudulent intent. 203 Ala. 395, 83-South. 139.

C. B. Gwin, Judge. Bill by the Coston-Riles Lumber Company against I. M. Riles and others. From a decree overruling' their separate demurrers, I. M. Riles, William Varner, and the Farmers’ State Bank appeal.

C. B. Gwin, Judge. Action by Harold Rush for damages against the Louisville & Nashville Railroad Company. Erom a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Wantonness cannot be imputed or inferred; it must always be proven.’ Wantonness cannot exist, unless there is a consciousness of the wrong done. 164 Ala. 171, 51 South. 324; 197 Ala. 81, 72 South. 356; 190 Ala. 77, 71 South. 457.

T. Lowe, Judge. Action by Gussie Taylor against A. D. Cohen, individually and as a partner of the firm of Ory-Cohen, for damages for the breach of a contract. From a judgment for plaintiff, defendant partnership appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.

J. Curtis, Judge. Action by G. F. Brown against Corona Coal Company. From a judgment for defendant plaintiff appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.

IL Hobbs, Judge. Action by Bloch Brothers against C. E. Shuptrine; the Liverpool & London & Globe Insurance Company, garnishee. From a judgment on contest of the answer of the garnishee, plaintiff appeals.

<p>1. Sales <®=3425—After rescinding for breach of warranty, buyer cannot recover damages.</p> <p>Since there must be a subsisting contract to authorize recovery for breach of warranty, the buyer cannot maintain an action for breach of warranty after he exercises his right to rescind the contract and return the property.</p> <p>2. Sales <&wkey;>404—Buyer can reject goods tendered as nonperformance of contract and sue for breach.</p> <p>A buyer can refuse to accept the goods tendered because they are not those called for by the contract without rescinding the contract, and thereafter recover his damages for the seller’s failure to perform the contract.</p> <p>,3. Sales <&wkey;>426—Contract held to limit remedy for breach of warranty to return of the property.</p> <p>A contract for the sale of machinery, which provided that, in case of the rejection of the property, the buyer should return it to the seller, and that a retention of the property after 30 days should constitute acceptance, makes the return of the machine the sole remedy for breach of warranty as to its performance.</p>

<p>Appeal from Circuit Court, Jefferson County ; J. B. Aird, Judge.</p> <p>Action for false imprisonment by Fletcher Summers against the American Railway Express Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.</p> <p>Two or more distinct causes of action cannot be stated in the alternative in the same count. 181 Ala. 499, 61 South. 361; 144 Ala. 60S, 42 South. 39; 110 Ala. 491, 18 South. 110; 116 Ala. 302, 22 South. 509; 94 Ala. 413, 10 South. 274; 131 Ala. 591. 32 South. 507; 137 Ala. 454, 34 South. 988; 134 Ala. 354, 32 South. 77S; 129 Ala. 523. 30 South. 023; 136 Ala. 191, 34 South. 194; 154 Ala. 197, 45 South. 296; Code 1907, § 5321. Where there is no conflict in the testimony, the question of probable cause is one of law. 19 Ala. 605: 75 Ala. 485; 167 Ala. 122, 52 South. 392. Stealing of any goods from a railroad car, moving in interstate commerce, is a felony. U. S. Comp. St. § 8603; Barnes’ Fed. Code, § 7927.</p> <p>Count 5 was not subject to demurrer. 159 Ala. 340, 48 South. 540 ; 2 Cold. (42 Temí.) 90. It was a question for the jury whether a felony had been committed, and defendant was not entitled to the affirmative charge. 103 Ala. 345, 15 South. 663, 49 .Am. St. Rep. 32.,</p>

Brickell, Judge. Bill by James J. Harris against Argie C. Bowles and others to cancel deeds, and cross-bill by R. N. Harris, Jr. From a decree dismissing the original and cross bills, original complainant and cross-complainant appeal.

Brickell, Judge. Bill by Minnie Stover .and G. E. Stover against J. W. Hill. Decree for respondent, and complainants appeal.

<p>1. Time &wkey;>IO(8)—First and last Sunday excluded in computing time for presenting bill of exceptions.</p> <p>Under Code 1907, § 11, where the last day for presenting a bill of exceptions is Sunday, the first and last Sunday is excluded.</p> <p>2. Appeal and error <&wkey;345(l)—Only motion for new trial considered when bill of exceptions not presented in time.</p> <p>Where bill of exceptions was not presented within 90 days from date of trial, only those matters embodied in the motion for new trial can be considered.</p> <p>3. New trial <&wkey;99—Properly denied when newly discovered evidence cumulative and fault not negatived.</p> <p>A now trial was properly denied, where the newly discovered evidence was merely cumulative, and the motion failed to negative fault on the movant’s part with respect to the discovery of the facts on which the motion was based.</p> <p>4. New trial &wkey;!30—Motion on ground that judgment contrary to weight of evidence does not raise question of excessiveness of damages. -</p> <p>A motion for new trial on ground that the judgment is contrary to the great weight of the evidence is not sufficiently comprehensive to embrace the point that the damages awarded were excessive.</p> <p>5. Appeal and error <&wkey; 1010(1)—Judgment not disturbed when findings supported by testimony, unless court convinced that it is wrong and unjust.</p> <p>In a case tried without a jury, the finding of the court, as expressed in the judgment, has the force and effect of a verdict, and, where there was eviden.ee justifying such finding, the judgment must not be disturbed, unless the court is convinced that it was wrong and unjust.</p> <p>6. Trial &wkey;>382—On' conflicting opinion evidence court must form opinion, draw reasonable deductions, and render judgment accordingly.</p> <p>On conflicting opinion evidence as to the market value of articles of personal property, it was the duty of the trial Court sitting without a jury to form an opinion, draw reasonable deductions from all the facts in evidence, and declare his conclusion by the judgment.</p> <p>7. Evidence <&wkey;>568(4)—Opinion as to value not conclusive, though without conflict.</p> <p>Evidence of value is necessarily opinion evidence and is not conclusive on courts and juries, even without conflict under Code 1907, § 3960.</p>

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