Bonifay v. Hassell

• Decision Date: 13 November 1893
• Citation: 14 So. 46,100 Ala. 269
• Parties: BONIFAY v. HASSELL.
• Court: Alabama Supreme Court

14 So. 46

100 Ala. 269

BONIFAY v. HASSELL.

Supreme Court of Alabama

November 13, 1893

Appeal from circuit court, Covington county; John P. Hubbard, Judge.

Action by John F. Hassell against R. A. Bonifay to recover damages for breach of contract. From judgment entered on the verdict of the jury in favor of plaintiff, defendant appeals. Reversed.

The contract provided that plaintiff should raft timber as fast as it was delivered at the mouth of a certain creek, and run the same down to Ferry Pass, Fla., as fast as the river would permit; and that for this service defendant was to pay plaintiff 30 cents per stick for all the timber delivered at Ferry Pass, and plaintiff was to pay $3 per stick for all timber lost. The evidence tended to show that some time in December, after making the contract, plaintiff had a quantity of timber which was caught by defendant in a boom at the mouth of the creek, but not rafted; that on Friday plaintiff left the mouth of the creek, and went to a certain village to get rope for rafting, and did not return until Sunday afternoon; that while he was gone there came a swell or rise in the river, and the timber of defendant got afloat in the river; that no one was left by plaintiff to look after the timber; that defendant, discovering his timber floating, and liable to be lost, procured a force of hands on Sunday morning, and went to work securing it, and continued to work until late in the evening; that about noon plaintiff came and worked a short time, and quit before all the timber was secured; that defendant insisted on plaintiff continuing to work to secure the timber, and pick up that which was adrift but the latter declined to work on Sunday; and that thereupon defendant said to him that he would have to take charge of his own timber. There was evidence that the actual cost of running the timber from the mouth of the creek to Ferry Pass was between 22 and 26 cents per stick; that the timber in question could have been run on that swell or rise of the river if plaintiff had rafted the timber; that other timber had been run to Ferry Pass on the same swell; that before another rise of the river came timber declined 1 1/2 cents per cubic foot, and there were three rafts delayed containing between 100 and 110 pieces, and that the pieces averaged 40 cubic feet; that there were lost 30 pieces of timber; and that plaintiff procured other employment "and made a living out of it," but it was not shown what was the amount of wages earned by him. The court, at the request of the plaintiff, gave the following written charge "The court charges the jury that if they are reasonably satisfied from all the evidence in this case that Hassell, the plaintiff, used such care and diligence in the rafting and running of the timber mentioned in the contract in this case as a reasonably prudent man would have done under the same circumstances, and that defendant broke the contract, then plaintiff is entitled to recover 30 cents per stick for all timber cut on defendant's mill and run to the mouth of said creek from the time the contract was broken up to the present time, and they should so find by their...