Opinion
2 Div. 688.
November 27, 1919.
Appeal from Circuit Court, Choctaw County; Ben. D. Turner, Judge.
W. J. Dansby, of Butler, and Tilley Elmore, of Montgomery, for appellant.
Court erred in giving the affirmative charge in this case for the defendant. 194 Ala. 332, 70 So. 90; 194 Ala. 343, 70 So. 7; 151 Ala. 313, 44 So. 47; 194 Ala. 175, 69 So. 601; 134 Ala. 238, 32 So. 684. Appellant was entitled to recover in this case. 23 Ala. 684; 152 Ala. 640, 44 So. 859; 186 Ala. 368, 64 So. 621; 181 Ala. 535, 61 So. 299; 190 Ala. 135, 67 So. 288.
A. A. Evans, of Montgomery, and Neville Stone, of Meridian, Miss., for appellee.
Counsel discuss the assignments of error, and criticize the authorities cited by appellant, and insist that they are without application, and the cause should be affirmed.
Means, the appellant, instituted this action against Blanks, the appellee. Judgment for defendant following general affirmative instruction for defendant.
The plaintiff's case was stated in five counts, the complaint being amended so as to exclude from the pleading all reference to timber on lands lying in section 21, and confining the complaint to timber on land in section 28. Counts 2 and 5 declare for trespass through the cutting of plaintiff's timber; count 4 for a conversion of plaintiff's timber; count 1 for damages for the breach by defendant of a contract of sale of timber; and count 3 for willfully and knowingly cutting and carrying away of plaintiff's timber.
Neither of the papers set out in the bill of exceptions transmitted the title to standing timber on the land in question from Means, the owner in August and September, 1914, to Blanks. Both of these papers manifest an unmistakable purpose, common to these parties, only to consummate the transaction for the sale and purchase of the timber by the execution by Blanks of a mortgage to Means, the latter engaging to release the timber on certain 40's of the land upon the contingency of payment by Blanks, at $2.50 per thousand feet, of 40 quantities as estimated in the paper dated September 12, 1914. Blanks executed a note to Means for $1,200, for the purchase of the timber, upon which he paid about $1,017. Blanks never executed the mortgage, as was distinctly contemplated. It is indicated by the evidence that soon after the parties had signed the paper dated August 12, 1914, Means permitted Blanks to move his mill on the land and enter upon the cutting of the timber thereon. The payments made by Blanks on the purchase money and the putting of Blanks in possession by Means met the exaction of the statute of frauds. Code, § 4289, subd. 5. The papers in this record being themselves inconclusive in the premises, what, in fact, were the terms of the contract between the parties, was a question upon which all pertinent evidence, written as well as parol, was admissible to contribute to the correct solution of the inquiry. Evidence of the negotiations, acts, statements, and conduct of both the parties in and about the transaction was properly admitted.
The plaintiff contended, and so testified, that Blanks' right to cut timber on the land was limited, under their contract, to two years from August, 1914. If the plaintiff's contention in this respect was true, the defendant was a wrongdoer when, after notice not to do so, he returned with his theretofore removed mill to the land in the fall of 1917, entered it and cut and removed timber therefrom; and the plaintiff was entitled to recover such damages as that entry and cutting and removal of the timber entailed, provided the plaintiff did not — as phases of the evidence went to show plaintiff did do — consent or acquiesce in the defendant's re-entry in 1917 and his resumption of the theretofore pursued process of cutting the timber in question. The general affirmative charge, given at defendant's instance, took this feature of the issue from the jury. It was error.
The judgment is reversed and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.