Wagar Lumber Co. v. Sullivan Logging Co.

McOLELLAN, c. J. The bill of exceptions contains this recital: ‘ ‘This being substantially all the testimony, the court charged the jury,” etc. The “testimony” here referred to embraces written as well as oral evidence. It is insisted that this recital is not the equivalent of a statement that the foregoing is ‘ ‘substantially all the evidence,” that “testimony” does not include documentary evidence, and hence that this court cannot conclude that the substance of all the evidence is set out. This construction is too technical. The recital having, as it did, reference to documentary evidence as well as evidence proceeding from the mouths of witnesses, is to be construed to mean that substantially all the evidence is set out; and we will consider the case upon the assumption that the substance of all the' evidence adduced on the trial is set forth in the bill of exceptions. Witness, E. O. Sullivan, used in the inspection of the land and timber a map furnished him by the defendant. It sufficiently appears that this map covered the land from which the timber was to be cut and also other land. Having testified that there were 100,000,000 feet of timber on the whole tract shown by the map, it was of course proper for him to go further and say how much of this estimated timber was upon the defendant’s land, and to this end it was not objectionable for the witness to state the respective areas of the defendant’s and other land shown by the map ; and that in doing this he was asked about and stated the names of the other owners is of no consequence. The court did not err in allowing the question : “How much of the Wagar and Wells land?” to be answered. E. O. Sullivan was an expert in respect of lumber timber : He had been in the logging business for thirty or thirty-five years, and was, therefore, competent to testify as to the physical characteristics of ‘ ‘merchantable timber” within the meaning of those words as employed in a logging contract. — Jones v. Anderson, 76 Ala. 428, s. o., 82 Ala. 302. But when in further definition of the phrase he went on to say “that it is [timber], fit to go on the market, to be conveyed there and pay expenses,” he exceeded his competency. It was not for him to say, that the defendant, entitled under the contract to receive “merchantable timber,” was bound to [572] receive all timber for which a market could be found in which it could be sold at prices sufficient to cover expenses. “Merchantable timber” may in point of fact in a given case be either better or worse than such as is fit to go on the market, to be conveyed there and pay expenses; and that is not a correct criterion for determining whether certain timber is merchantable. The motion of the defendant to exclude the last clause of the answer should have been granted. One theory of the plaintiffs was, that they were authorized to throw up the contract by the requirement of defendant that a million feet of timber should be delivered each of the first six months of 1897, when under the contract they were allowed twelve months to deliver six million feet. Ls tending to show the impracticability of delivering a million feet per month the testimony of Sullivan as to the character and capacity of the place of délivery, the locality of the skidways, the number of cars that could be simultaneously unloaded there, and the capacity of the pond into which deliveries were to be made, was properly admitted. Under the pleadings in this case the assignment of the contract by E. O. Sullivan to M. N. andF. W. Sullivan, partners, doing business under the name of Sullivan Logging Company, and the ownership of plaintiffs of the contract so assigned, as alleged in the complaint could not be controverted for any purpose by the defendant. The evidence offered for the purpose of showing that the contract was in. fact assigned, or belonged to M. N., F. W. and E. O. Sullivan was properly excluded. Code, §§ 1801, 1808. The motion of defendant to be allowed to withdraw its plea of recoupment and for leave to file a verified plea denying the assignment of the contract to plaintiffs, coming at the time it did, was addressed to the discretion of the trial court. We will not revise the ex-^ ercise of that discretion to the denial of the motion. There was no error in the action of the court refusing to permit the witness, Wagar, to use as memoranda to refresh his recollection a statement written out by the book-keeper of the defendant, it not being shown that [573] the witness himself had any knowledge of the correctness of the statement. — Stoudenmire v. Harper Brothers, 81 Ala. 242. The witness, Rice, was shown to be competent to testify as to the details of the cost of logging, such as was involved in the contract sued on. lie had committed the items of such cost, as he had estimated them, to writing. The memorandum he had with him when testifying. He sought to refer to this memorandum for the purpose of refreshing his. knowledge of the items. No matter of memory was involved. He had not made the figures upon any recollection of any past fact, “but from estimates based on his experience.” It would seem that the court properly refused ro permit him to refer to this paper. But whether so or not is immaterial here since without referring to the memorandum, he went on and gave the items of cost inquired about. The book about which the witness, Owen, testified, and in which were entries made by him in respect of the days he claims he went out on the engine to inspect logs, was not shown to be correct as to such entries, nor does it appear that they were made at or about the time at 'which the facts to which they relate transpired. It was properly excluded. — Stoudenmire v. Harper Brothers, 81 Ala. 242. The witness, E. D. Smith, answered the question: “What effect, if any, will the indiscriminate delivery of logs in miscellaneous lengths have upon the cost of manufacturing a special bill of lumber?” notwithstanding the court sustained an objection to it'. Hence, defendant can take nothing by its exception to the court’s ruling. In its plea of recoupment the defendant claims noth* ing on account of the cancellation of contracts in consequence of plaintiffs’ failure to cut and deliver logs in lengths and sizes as directed by defendant, its claim in that behalf being only that it was “put to great inconvenience, delay and increased cost in meeting its contracts.” The proposed evidence of Little to the effect that contracts were cancelled by the defendant because plaintiffs failed to comply with instructions as to the lengths, sizes, etc., of logs to be cut and delivered, and that defendant would have made a certain profit on said [574] contracts had it not been thus prevented filling them by the plaintiffs, was not relevant to any issue in the ease. The court did not err in giving charge 1 requested by plaintiffs. — Anvil Mining Co. v. TIumble, 158 U. S. 540, 551-2 ; McTighe v. McLane, 93 Ala. 626. The court below fell into error in giving the second charge requested by plaintiffs. The contract contains this provision: “Payments tobe made on the (10 th) tenth day of each month for all logs delivered during the preceding month, except ten cents per thousand feet which is to be heldbaclc until the full completion of the*contract, as a reserve for the faithful performance of the same.” We construe this stipulation in respect of the reservation of ten cents per thousand feet to mean that if the plaintiffs wrongfully failed to perform the contract, that part of the price agreed to be paid for the logging contemplated by it — the logging of all the timber described in the instrument and in the manner therein prescribed— should not be paid ttí them at all. The charge in question renders this stipulation entirely nugatory, requiring, as it does, the payment of this reserve fund to plaintiffs even though the jury should find they had wholly abandoned the contract without justification. . Support for the instruction is sought in the case of Danforth & Armstrong v. Tennessee & Coosa Railroad Co., 93 Ala. 614; but the opinion in that' case does not afford it. It was there held upon a like provision that the party against whom such a reserve fund is held was entitled to recover it “upon being wrongfully forced to abandon the work” contracted to be done. Charge 5 refused to defendant is perhaps abstract in respect of the date after which plaintiffs ceased to per•form the contract; and it has a tendency to mislead the jury in its use of the word “prevented.” Defendant may not have prevented plaintiffs from going on with the contract, in the sense the jury might have understood that word, and yet have justified them in abandoning it. Charge 8 refused to defendant was bad in limiting plaintiffs’ recovery, if entitled to recover, to profits they would have made from full performance. The suit was [575] for other items as well as for profits. And charge 9 refused to defendant is open to like objection. For the errors pointed out, the judgment is reversed. The cause will be remanded.