Hill v. McBryde

TYSON, J. This action was brought by the plaintiff; against the defendant for the ‘breach of an.agreement in wiiich the defendant promised to’ pay tíe plaintiff two hundred and twenty-five dollars for services to be-rendered by him in floating certain timber owned by the plaintiff from a certain point on Hurricane creek to-Paint Bock Station, a point on Paint Bock river. The c-nly breach of the contract as alleged is in these .words: “That 'the plaintiff had placed said timber in 'said Hurricane, creek and before he had an. opportunity-to float, said 'timber, the defendant removed said timber from said Hurricane creek and thereby placed if beyond the power of the plaintiff to perform his-part of the contract.” The defendant filed four pleas. Plea one denies the* allegations of the complaint. Plea’ two denies that plaintiff placed the timber in Hurricane creek. The-other -two deny that the timber was removed before-plaintiff had opportunity to float it and the plaintiff’s-readiness to perform the contract. It was an admitted fact in the evidence that only a portion of the timber, about one-half of it, was placed by the plaintiff in Hurricane creek. The plaintiff has; not only faded to prove the breach of the contract as alleged, but the averments of the defendant’s plea No. 2’ were proven beyond adverse inference. On this state-of the pleadings and proof, the defendant being entitled to the general affirmative charge, any errors committed by the court in special rulings ‘are not ground of reversal' at the instance of the party appealing, since they could not have injured him. — Glass v. Mayer, 124 Ala. 332, and authorities therein cited. Affirmed.