H. H. Hitt Lumber Co. v. McCormack

BROWN, J. (1) The rule as to the right of a witness to- refresh his recollection from a memorandum made by the witness is stated in Birmingham Railway, L. & P. Co. v. Seaborn, 168 Ala. 658, 53 South. 243, and Acklen v. Hickman, 63 Ala. 498, 35 Am. Rep. 54; and we deem it unnecessary to restate it here. Suffice it to say that it was made to appear that the memorandum used by McCormack to- refresh his recollection was made by the witness, and that after examining it his memory was so refreshed that he could state the quantity of timber shown by the scalings made by him, and under the rule the court properly allowed the witness to use the memorandum to- refresh his recollection. (2, 3) Treating these entries as a mere memorandum to which the witness could refer to- refresh his recollection, and after referring to it his recollection was refreshed, the memorandum itself was not admissible.—Birmingham Railway, L. & P. Co. v. Seaborn, supra. But the testimony shows that these entries were more than a mere memorandum. The witness, after testifying that he scaled the logs cut, which were carried away by the defendant, and the cutting of which was not paid for, further testified that the scaling was done by witness each day as the logs were cut, and memoranda made in a little book which he carried in his pocket, and each night the entines of that day’s work were made from the memoranda on the sheet; that witness did all the scaling and made all the entries, and that this scaling ivas correct. This, in view of the character of the work, constituted the sheet the permanent record of the scaling, and it was admissible as original evidence.—Donaldson v. Wilkinson, 170 Ala. 510, 54 South. 234; [457] Murray & Peppers v. Dickens, 149 Ala. 240, 42 South. 1031; Dickens v. Murray & Peppers, 163 Ala. 556, 50 South. 1019; Thompson v. Cole, 6 Ala. App. 208, 60 South. 556; Alabama Iron Co. v. Smith, 155 Ala. 287, 46 South. 475; West Va. Architects & Builders v. Stewart, 68 W. Va. 506, 70 S. E. 113, 36 L. R. A. (N. S.) 899, and note. (4) The testimony of the witness McCormack, aside from what Bullington told him as to his (Bullington’s) relations, shows that Bullington was working for the defendant and had charge of its business, and scaled the logs cut by plaintiffs, and that Bullington furnished the paper “Exhibit B” to the witness (one of the plaintiffs), and in the letter from the defendant to plaintiff’s counsel regarding the status of the account, shown by Bratcher to be authentic as coming -from the defendant, Bullington is referred to as “our representative Mr. E. Bullington,” and in the letter identically the same figures are given as shown by the statement. This was sufficient proof to authorize the admission of the statement “Exhibit B” in evidence. (5) The evidence as to the scope and terms of the contract between the parties was conflicting, and at least afforded an inference that it conferred upon the plaintiffs the right to cut all the timber on the Beard and Bedinger tracts, and it was the province of the jury, and not the court, to- pass upon the conflicts in the evidence and to draw inferences therefrom, and charges 1 and 2 were well refused.—Pantaze v. West, 7 Ala. App. 599, 61 South. 42. (6) In view of the evidence showing that plaintiffs were personally performing the work of cutting the timber, that they did not employ the work done, that their labor netted them each $2 per day, and the evidence [458] tending to show that the effect of the breach of the contract was to deny them the right to perform the work and thus use their own labor, charge 3 was properly refused. (7) Since the enactment of the statute Code 1907, § 5865, to be available as a defense, recoupment must be specially pleaded.—Bixby-Theisen v. Evans, 186 Ala. 507, 65 South. 81; Carolina-Portland Cement Co. v. Alabama Const. Co., 162 Ala. 380, 50 South. 332; Lawton v. Ricketts, 104 Ala. 430, 16 South. 59. We find no' error in the record, and the judgment of the circuit court must be affirmed. Affirmed.