McLeod v. Flournoy

WALKEB, P. J. The bill of exceptions was presented to the trial judge, and signed by him, Avithin 90 days from the date of the judgment overruling the motion for a neAV trial. This being true, so far as it pertains to the motion for a new trial, it Avas presented and signed in time, and may be looked to for the purpose only of revising the rulings on that motion.—Code, § 3019; Cassells’ Mill et al. v. Strater Bros. Grain Co., 166 Ala. 274, 51 South. 969. It MIoavs that the motion to strike the bill of exceptions must be overruled. The principal contention of the appellant is that his motion for a new trial should have been granted on the grounds stated in it, which suggested that the court had erred in refusing certain written charges requested by him. In vieAv of the nature of the controversy between the parties and the' evidence bearing upon it, each of those charges might have been understood as involving the proposition that the defendant, by disregarding notices given to him by the plaintiff not to haul from plaintiff’s land the cross-ties which the defendant had cut under the contract between them, so far Avaived the breach of that contract committed by the plaintiff in giving those notices as thereby to disable himself to set 550 off or recoup damages he had sustained by the loss of cross-ties consequent upon the plaintiff’s so denying him the right to remove them from the land. The defendant’s claim of set-off or recoupment was based upon the loss of a lot of the ties by fire while he was kept off the land by the notices from the plaintiff. Referring to one of the notices, the defendant testified: “After I received the letter, the woods were burned over. It was' about six weeks afterwards. From the receipt of the notice up to the time of the fire I did not go on the land.” Certainly his going on the land afterwards, in disregard of the notice, and hauling away some ties which were left, did not operate as a waiver by him of a right to claim damages which already had resulted while he desisted from going upon the land in obedience to the notice, and in consequence of his being deprived in that way of the opportunity of getting the ties. That conduct may have operated as a waiver by the defendant of the right to treat plaintiff’s breach of the contract as a discharge of the liability under the contract for the cross-ties he actually got in disregard of the notice from the plaintiff; but his acceptance of a part of the ties under the contract did not have the effect of destroying his claim against the plaintiff for damages sustained by the loss of other ties, to which he was entitled under the contract, in conseuqence of the plaintiff’s breach of the contract. He could retain the ties which he hauled off in disregard of the plaintiff’s notices, and for which he thereby made himself liable according to the terms of the contract, though the plaintiff had breached it; and, as against the plaintiff’s claim on account of the ties so actually received by the defendant under the contract, the latter was entitled to set off or recoup the damages he had suffered by the loss of other ties in consequence of the plaintiff’s breach 551 of the contract. In other words, the defendant’s conduct in question may ha.ve operated as a waiver by him of the right to treat the plaintiff’s breach of the con-, tract as a discharge of all liability of the defendant under it; but it did not have the effect of depriving him of the right, in an action by the plaintiff on the contract, to set off or recoup whatever damages he may have sustained by the plaintiff’s breach of its terms or obligations.—Frith v. Hollan, 133 Ala. 583, 32 South. 494, 91 Am. St. Rep. 54; 3 Page on Contracts, § 1509. The court was not in error in refusing the charges above referred to nor in overruling the motion for a new trial. Affirmed.