Alabama G.S.R. Co. v. Moore

Decision Date04 February 1896
PartiesALABAMA G. S. R. CO. v. MOORE, ET AL.[1]
CourtAlabama Supreme Court

Appeal from circuit court, St. Clair county; George E. Brewer Judge.

Action by Moore & Stephens against the Alabama Great Southern Railroad Company. Judgment for plaintiffs, and defendant appeals. Reversed.

This action was brought by the appellees, Moore & Stephens against the appellant, the Alabama Great Southern Railroad Company. The facts of the case are sufficiently stated in the opinion. Among other charges requested by the defendant, and to the refusal to give each of which the defendant separately excepted, was the following: "The court charges the jury that if they believe the evidence, they should find a verdict for the defendant." The present appeal is prosecuted by the defendant. The assignments of error are based upon the rulings of the court upon the evidence, and the refusal of the court to give the charges requested by the defendant.

Goodhue & Sibert, for appellant.

Inzer &amp Greene, for appellees.

HARALSON J.

This case was tried on the second and fourth counts in the complaint, the first and third having been excluded from consideration by rulings of the court in favor of appellant. The second makes claim for $150, for 493 railroad ties, of the value of 28 cents each, and for 89 other railroad ties of the value of 14 cents each, "sold by plaintiff to defendant in the month of October, 1893"; and the fourth makes claim for a like sum of money due by account on the _____ day of October, 1893, "for and on account of railroad ties, the property of plaintiffs, appropriated by defendant to its use, on the _____ day of October, 1893, and for which ties the defendant promised and agreed to pay plaintiffs." The cause was tried on the plea of the general issue, and a verdict was rendered against the defendant for $170.20.

The undisputed facts in the case, are that for several years prior to July, 1893, the plaintiffs had sold cross-ties to one Scott, who sold them to defendant; and, according to their course of dealing, plaintiffs placed the ties for Scott, on the right of way of the defendant company, marking them with their initials, "M. & S." One Osborne was employed by the defendant to inspect and classify all ties it bought. Scott, under his contract with the plaintiffs, paid 28 cents, each, for first class, and 14 for second class ties, after they were placed on the right of way and inspected, and these ties, after they had been inspected and classified, were used by the defendant; that Scott's contract to furnish ties to defendant lasted till December 1893, and the defendant bought all its ties from said Scott under its contract with him; that the ties in controversy were purchased by defendant from Scott, under its contract with him, just as it had done previously, and defendant paid him in full for them, before the commencement of this suit; that the defendant had no contract with plaintiffs to furnish to it any ties; that Osborne's duties were to inspect and classify the ties he found on the right of way, and make report of the same to the defendant company, and that it paid Scott for them on the basis of his classification; that in October, 1893, under orders from his superior, Osborne inspected 25,000 ties under Scott's contract with defendant, and had no authority to inspect any others; that in October, 1893, under the instructions he received, he inspected and classified those in controversy, and made his report to his superior, and that all the authority he had was in the matter of inspecting and classifying ties. It was further shown, that Moore, one of the plaintiffs, wrote to Scott asking for pay for ties furnished in July, and also wrote to him several letters making inquiries about those furnished in October, the...

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9 cases
  • National Surety Co. v. Citizens' Light, Heat & Power Co.
    • United States
    • Alabama Supreme Court
    • April 18, 1918
    ... ... Doherty & Co., filed their bill in the ... United States court for the Middle district of Alabama, on ... the equity side of said court, for specific performance of ... said contract of sale made ... plaintiff's cross-ties on which the action was based ... A.G.S.R.R. Co. v. Moore, 109 Ala. 393, 397, 19 So ... 804. These three cases are distinguishable from the case at ... ...
  • Bonanza Mining & Smelter Co. v. Ware
    • United States
    • Arkansas Supreme Court
    • April 7, 1906
    ...the date of the alleged contract, and is therefore not bound by a contract to which it was not a party. Clark on Cont. § 217; 9 Cyc. 386; 109 Ala. 393; 71 Ala. 3. Having no corporate existence at the date of the alleged contract, appellant can not be held responsible for the acts of F. S. C......
  • Cowan v. Martin & Huckaby
    • United States
    • Alabama Supreme Court
    • February 1, 1945
    ... ... Robinson Lumber Co. v. Sager, 199 Ala. 675, 75 So ... 309; Alabama Great Southern R. Co. v. Moore, 109 ... Ala. 393, 19 So. 804 ... The ... subject ... ...
  • Alexander v. Alabama Western R. Co.
    • United States
    • Alabama Supreme Court
    • November 21, 1912
    ... ... An express contract ... excludes an implied one in reference to the same ... subject-matter. In A. G. S. v. Moore, 109 Ala. 393, ... 19 So. 804, a case very like this in essential character, ... except that no question of unenforceable promise was ... ...
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