Anderson v. English

• Decision Date: 19 April 1899
• Citation: 121 Ala. 272,25 So. 748
• Parties: ANDERSON ET AL. v. ENGLISH ET AL.
• Court: Alabama Supreme Court

25 So. 748

121 Ala. 272

ANDERSON ET AL. v. ENGLISH ET AL.

Supreme Court of Alabama

April 19, 1899

Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Action by English & Webb against George L. Anderson, and another. There was judgment for plaintiffs, and defendants appeal. Affirmed.

This was an action to recover the value of certain lumber sold to the defendants, and also to establish and fix a lien on the building into which the lumber went. The defendants admitted the purchase of certain lumber from the plaintiffs, and tendered the amount due therefrom, and kept the tender good and as to the balance they pleaded the general issue. There was a dispute between the parties, not only as to the quantity of lumber delivered, but as to the terms of the oral contract under which it was delivered. English, one of the plaintiffs below, testified, in substance, that he bought two old houses from the Elyton Land Company, 18x36 feet, and two stories high, which he was to tear down, and remove from the premises; that he entered into an agreement with Webb, by which he was to superintend the tearing down of the houses for a share of the proceeds; that Webb made a contract with the defendant below to build a fence around a lot 100 feet square out of some of the lumber in these buildings; that after this contract was made, witness saw Anderson, who stated that he would want 2,500 feet more of lumber, which witness agreed to furnish him at $6 a thousand; that he delivered the 2,500 feet, and afterwards Anderson said he would want more lumber; that with the first load of additional lumber thus sent, a memorandum, or receipt showing the quantity of the lumber on the load, to be signed by the defendant Anderson, was also sent; that Anderson's agent refused to sign the receipt, and Anderson, when sent for, also refused to sign it, stating that he could not afford to stop work to measure up loads of lumber of odd sizes and dimensions, and the witness states that thereupon the following agreement was made: "That they could just go ahead, and send over all the lumber they had, and that he would use what he wanted, paying them therefor at the rate of $6 per thousand, and what was left over he would return to them." To show what quantity of lumber had been delivered, the witness was asked: if he had any memorandum showing the amount of lumber that had been furnished by plaintiffs to the defendant, to which he answered "Yes." The witness English was handed a paper, or rather several leaves from a book containing an account of lumber claimed to have bene delivered to defendants, from which he began to testify, using the same as a memorandum. Defendants objected to witness using the paper as a memorandum, and asked to be allowed to interrogate the witness as to how the said account was made, which was allowed. In answer to questions by defendants' attorney witness stated that the original entries were made at the time the hauling was being done, which hauling was supervised by himself and Webb; that he did not make all the entries that he made some and Webb made some; that they were together when those made by Webb were made by him. In response to a question by the court, the witness stated that he saw Webb make the entries made by him, and knew them to be correct at the time. Witness further stated that the paper held by him was not the original entries, but a copy thereof, made by himself. The court thereupon overruled defendants' objection, and defendants excepted. Witness stated that the account, as shown by the memorandum, was correct, and that they had delivered to the defendants, 14,748 feet of lumber; that no account of the lumber has ever been given to the defendants, but he had called on the defendant Anderson, and demanded pay for the whole amount at $6 per thousand; and that, when the said demand was made, Anderson insisted that they should go up and measure the house, and see how much of the plaintiffs' lumber was used therein, but witness declined to make such measurements, or rely thereon. Plaintiffs offered in evidence a claim of lien for $88.48 on the foundry building of the G. L. Anderson Company, Limited, to which was attached a paper purporting to be a statement of the lumber furnished, which said claim was filed in the office of the judge of probate on the 13th of August, 1896. Plaintiffs also offered in evidence a notice to G. L. Anderson Company. Limited, of the filing of said lien. For the defendants, G. L. Anderson testified that after he had made the contract for the building of the fence around the lot upon which the house in question was built he made another contract with the plaintiffs, in which it was agreed that the G. L. Anderson Company, Limited, was to take enough of the old lumber which the plaintiffs had to inclose the front of the building, and that he would pay for such lumber at the rate of $6 per month; that when the first load of lumber was sent to him he refused to sign a receipt or memorandum which was sent to him, and thereupon the following agreement was made between him and the plaintiffs: That they (the plaintiffs) "would send over to the lot upon which he was building the lumber they deemed necessary, and after the work was completed they would measure it up, and he (the defendant) would pay them for it at the rate of $6 per thousand for all that he had used"; and it was further agreed "that, if there was any lumber in the yard belonging to plaintiffs which was unused after completing plaintiffs' building, they could hold it off or sell it therefrom." The other testimony for the defendants given by G. L. Anderson and the other witnesses introduced by him was to the effect that there were not exceeding 7,000 feet of the lumber purchased from plaintiffs used by him in the erection of said building. Upon the introduction of all the evidence, the court, at the request of the plaintiffs, gave to the jury the following written charges: (1) "In order to establish a change in the contract between the parties after it was made, the burden of proof is upon the party asserting such change to have been made." (2) "If the jury find that the contract between the parties was silent as to what portion of the lumber delivered was to be paid for, and that after plaintiffs offered to deliver or began to deliver it as claimed by defendants, that it was then agreed that only such lumber as was used in the building should be paid for, the burden of proof as to such new agreement is upon the defendants." (3) "If the jury believe from the evidence that the plaintiffs delivered to the defendants lumber with which to build under a contract for payment at six dollars per thousand for so much thereof as might be used, and the remainder to be returned, then defendants would be liable at said price for all of said lumber so delivered and not returned." (4) "If the jury believe from the...