Byars v. James

• Decision Date: 02 November 1922
• Docket Number: 8 Div. 446.
• Citation: 94 So. 536,208 Ala. 390
• Parties: BYARS ET AL. v. JAMES.
• Court: Alabama Supreme Court

94 So. 536

208 Ala. 390

BYARS ET AL. v. JAMES.

8 Div. 446.

Supreme Court of Alabama

November 2, 1922

Appeal from Circuit Court, Lawrence County; Osceola Kyle, Judge.

Action by I. L. James against J. D. L. Byars and others. From a judgment for plaintiff, defendants appealed to the Court of Appeals, from which the case was transferred to the Supreme Court under Acts 1911, p. 449, § 6. Reversed and remanded.

C. M Sherrod and R. L. Almon, both of Moulton, for appellants.

G. O Chenault, of Albany, for appellee.

THOMAS J.

The suit on contract resulted in judgment for plaintiff.

Count 1 declared for breach of contract in the failure to repair the roof of the warehouse, claimed damages proximately resulting therefrom, and specified the same, viz.:

"Cotton stored therein was damaged on account of leaks in the roof in said sum of $913.95, which the plaintiff was required to pay the owners of said cotton."

Defendants had the right to have specification of the nature of the contract, whether based on sufficient consideration, and, to this end, to know whether the contract was verbal or written (Birmingham R., L. & P. Co. v. Littleton, 201 Ala 141, 77 So. 565; Hart v. Coleman, 201 Ala. 345, 78 So. 201, L. R. A. 1918E, 213; McCormick v. Badham, 204 Ala. 2, 8, 85 So. 401), and such specification as the circumstances of the case will permit of the nature and extent of the damages alleged to have been sustained by plaintiff (Irby v. Wilde, 150 Ala. 402, 43 So. 574; Anniston Elec. & Gas Co. v. Rosen, 159 Ala. 195, 208, 212, 48 So. 798, 133 Am. St. Rep. 32; Powell v. Schimpf, 154 Ala. 665, 44 So. 1044 [memo.]; King Land & Imp. Co. v. Bowen, 7 Ala. App. 462, 480, 61 So. 22). The specifications of nature and extent of damages were such as the circumstances of the case admit. However, there was error in overruling defendants' ground of demurrer challenging the sufficiency of the count in failing to state whether the contract was verbal or written. The same defect in the second count was duly challenged by demurrer, and was overruled. In this there was error.

On the trial the plaintiff, as a witness in his own behalf, testified that he rented a "certain warehouse in Hillsboro, Ala., from the defendants Mr. Byars, Mr. Cartee, and Mr. Gillespie" on January 23, 1918; that he "made a memorandum of that contract and signed it and sent a copy to them to sign and return to" him. "They did not return it." The context shows that he was referring in the use of the words "to them" and "they did not," etc., to defendants. Plaintiffs then offered in evidence the interrogatories propounded to defendants and answers by defendant Gillespie to the effect that, as owners of the warehouse, on February 23, 1918, they rented the same to plaintiff "for a term of three years"; that they "had verbal authority from a majority of the joint owners *** given at a meeting" held February 16, 1918; that "there was no written contract concerning the rent or repair of the warehouse," and that the owners "agreed to put the roof in good condition, and Mr. I. L. James [plaintiff] *** agreed to keep it in good condition." The defendant further answered to the interrogatories that the owners "gave Mr. I. L. James the job to repair the roof and expected him to make it nonleakable, as he had contract to do so"; that he did not "know whether he made it nonleakable or not"; that he knew the "warehouse was being used for storing cotton and fertilizer"; that James "had taken the contract to repair the roof and had agreed in the first contract to keep it in repair"; that the defendants had not paid him the damages demanded. Continuing, Mr. James testified of the negotiation between the parties for the rental, of the temporary repairs which he had a third party make on the roof, etc.; that he did not agree, as a part of the contract, to have the roof repaired or make it nonleakable, but that what he did on the roof was at the mere request of defendant owners; that he was asked by one of the joint owners "to write out the contract," to which witness agreed and promised to send a copy thereof the next day to defendant owners, which he did; that "their names wasn't signed to that contract." It is then recited by the bill of exceptions that "the plaintiff then offered in evidence the memorandum of the contract that he [James] *** wrote and sent, that their names [the owners] were not signed to [it], but did not offer the names of defendants as being signed to it." The testimony showed that there were "names on the contract there in pencil" added by plaintiff. The defendants "objected to the introduction of said contract because the same was illegal, immaterial, and irrelevant, because the testimony shows that it was signed by only one party to the contract, and because it is not a contract, and because it is not signed by the party that is sought to be bound to it." The court overruled the defendants' objection and allowed such written memorandum to be introduced in evidence, to which action of the court defendants duly excepted. The contract was in words and figures as follows:

"We this day lease to I. L. James, the warehouse in Hillsboro, Alabama, for a term of three years, for $100 each year, $25 the first of each quarter. We are to repair the roof on said warehouse and make same non-leakable and James is to keep roof in repair at his own expense until his lease expires. James is to fill up a large mud hole at the south end of the warehouse. Should either party to this contract fail to comply with same, party failing, shall pay the other party all damages caused by such failure. Lessee I. L. James."

Was this contract or copy thereof properly allowed in evidence against defendants' due objection and exception? To sustain the ruling of the trial court, it must have been admissible: (1) As a written lease of real property for a term of more than a year (Code, § 4289); or (2) as a memorandum of the exact terms of the contract used by the witness to refresh his recollection and about which he had not independent recollection, other than the fact that at the time the same was reduced to writing he knew it to be the true agreement of the parties; or (3) as an admission against interests by the party to whom the contract, copy, or memorandum was said to have been mailed or given. The receipt of same was denied by the party sought to be concluded thereby, as also was its contents, or that the paper exhibited at the trial was a true memorandum of the contract of the parties.

We are of opinion that its admission cannot be justified as the lease contract of the warehouse in question. A discussion of this phase of the subject is to be found in Heflin v. Milton, 69 Ala. 354, 358.

Its introduction cannot be justified as a memorandum of the contract. An early treatment of the principle is contained in Vastbinder v. Metcalf, 3 Ala. 100, as follows:

"A witness who has made a memorandum of facts may refresh his memory by referring to it; and if by that means he obtains a recollection of the facts themselves, as distinct from the memorandum, his statement is evidence. 1 Starkie on Ev. 127. For this purpose only could this paper have been looked to by the witness, but it was not evidence for any purpose whatever to go before the jury."

The paper or memorandum made the subject of this discussion was of a lease to a sawmill and the hire of slaves for one year at a recited consideration, but which was not signed by the parties, but was proved by the person who wrote it to be the agreement under which the lease was made. The memorandum of the contract was held inadmissible against due objection and exception. Russell v. Bush, 196 Ala. 309, 321, 71 So. 397; Floyd v. Pugh, 201 Ala. 29, 33, 77 So. 323.

Again, in a later decision, it was declared that a memorandum or other writing is not made evidence by being used to refresh the memory of a witness, if the witness, after examining the writing, testifies from his independent recollection of the facts (Rutherford v. Bank, 14 Ala. 92); that, where a witness has no independent recollection after his reference to the memorandum, but testifies merely from his knowledge of the accuracy of the paper or entry when it was made, in such event the memorandum or paper may be read in evidence as auxiliary to the witness' testimony, or as a statement of fact adopted by him and testified as being true and correct when made. Floyd v. Pugh, supra; Mims v. Sturdevant, 36 Ala. 636; Holmes v. Gayle, 1 Ala. 517; 40 Cyc. 2467.

The substance of the testimony was that the lease was for a term of three years; that one of the owners asked plaintiff to write it out, and he replied, "You can write it or Mr. Byars can," to which Clarence Gillespie answered, "You can get it up," to which plaintiff assented, saying, "I will write it and send you a copy, which I did the next day. I kept a copy of the contract; *** Clarence will testify that he told me to write the contract." The contract, being for the lease of real property for a period of three years, is required to be in writing, unless it is within the exception provided by the statute. Formby v. Williams, 203 Ala. 14, 81 So. 682; Code, § 4289.

If it was stipulated at the time of the conclusion of negotiations between the parties that the contract should be reduced to writing by plaintiff, there was no completed contract until this was done and the same executed by the parties thereto. Hodges v. Sublett, 91 Ala. 588, 8 So. 800. This provision may be waived by the parties, respectively, by delivery of possession and payment of a part of the purchase price. Formby v. Williams, supra. Plaintiff testified that he immediately reduced it to writing and the next day sent a copy thereof by mail to defendant Gillespie. The latter...