Bynum v. Gay

McCLELLAN, J. The complaint contains three counts, one for the value of trees cut and removed by Gay from the lands of Bynum, one for the conversion of such timber, and one in trespass. The pleas were the general issue and of tender. The judgment entry recites that issue was joined on the pleadings; thus, as we construe it, including the plea of tender. The bill of exceptions recites that the “plaintiff on the trial moved to strike the plea of tender from the file.” The court overruled the motion. After having joined issue on the plea, there was no error in overruling plaintiff’s motion to strike. He should have, if so advised, assailed the plea before joinder in issue thereof. — Rudulph v. Wagner, 36 Ala. 698. The plea was not proven beyond dispute. The sum tendered and paid into court, as averred in the plea, was $22.16, and there were tendencies in the proof to the effect that timber of a greater value was cut and removed or appropriated, from the land of plaintiff, at the instance of the defendant. The remaining errors assigned relate to the oral charge of the court and to the refusal of special charges requested for plaintiff and one such charge given for defendant. In brief of counsel for appellant, the whole insistence for recovery is.based on the trover count of the complaint. The status of the proof clearly required the issues raised by that count to be submitted to the jury as was done. The affirmative charge in that connection was therefore properly refused to plaintiff. Charge 1 was well refused to plaintiff. There was some evidence to the effect that without the knowledge or consent of defendant timber of plaintiff was cut, and without defendant’s knowledge or consent this timber, or its product, was used in fencing and constructing [143] houses on defendant’s lands. Trover will only lie for the conversion of chattels and there was testimony in the cause fairly inducing the conclusion that timber from plaintiff’s land, without the knowledge, consent, or procurement of defendant, became attached to defendant’s lands, and therefore realty. If it became a fixture — realty—before defendant had any knowledge or notice of the source from which the timber, or its product, came, we do not think trover would lie.— Thweatt v. Stamps, 67 Ala. 96. Reference to the decisions cited in brief of counsel for appellant will show their want of bearing upon the question just stated. Accordingly, the court did not err in refusing charge 1. In the oral charge of the court and in a special charge given at the instance of the defendant, the jury was instructed that, if only nominal damages were found to have been suffered by plaintiff for which defendant was liable, the verdict should be for defendant on his plea of tender before suit brought; and, on the other hand, if more than nominal damages were found to have been suffered by plaintiff for which defendant was responsible, then full damage to plaintiff should be awarded without regard to the plea of tender. Without committing this court to the propriety of the plea of tender in this action (see 2 Chitty, p. 470; 28 Ency. Law, pp. 10, 11; Cernahan v. Chrisler, 107 Wis. 645, 83 N. W. 778), the general law seems to have been declared by the court on the status made by the unassailed plea of tender. — 28 Ency. Law (2d Ed.) p. 11; Schuessler v. Simon, 100 Ala. 422, 14 South. 203; Gardner v. Black, 98 Ala. 638, 12 South. 813; Syson v. Hieronymus, 127 Ala. 482, 490, 28 South. 967. No error prejudicial to appellant appears in the record, and the judgment is affirmed. Affirmed. Dowdell, C. J., and Anderson and Sayre, JJ., concur.