Bynum v. Gay

• Decision Date: 24 May 1909
• Citation: 49 So. 757,161 Ala. 140
• Parties: BYNUM v. GAY.
• Court: Alabama Supreme Court

49 So. 757

161 Ala. 140

BYNUM v. GAY.

Supreme Court of Alabama

May 24, 1909

Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.

Action by R. H. Bynum against A. A. Gay, for trover, trespass, and conversion. From a judgment for defendant, plaintiff appeals. Affirmed.

The facts are sufficiently stated in the opinion. The following charge was refused to plaintiff: "If the timber used to build the barn and fence on Gay's place were cut from Bynum's land without his consent, and Mr. Gay thereafter used said barn and fence as his own, then Mr. Gay is liable to Mr. Bynum for the reasonable value of such timber; and this is true, even though Mr. Gay may not have authorized the cutting of the timber." The bill of exceptions recites that the court charged the jury orally, first, that if they find, from the evidence, the plaintiff's damages to be only nominal, he could not recover, as, if they so found, the plea of tender was good, then the plaintiff could not recover; second, that if the jury found the damages to be more than nominal, one cent or one dollar, the plea of tender was not an answer, and they should find for the plaintiff whatever damages the evidence showed, if any was shown, to have been done by the defendant or by his direction, and further, that the plaintiff cannot recover unless he shows reasonably that the defendant or some one by his direction or instruction cut or removed the timber, and also that if they find, from the evidence, that defendant sold any poplar trees to Wheeler, and Wheeler got any such timber from the lands of the plaintiff, and the defendant did not know they were gotten from plaintiff's land, though Wheeler paid defendant the same by giving credit on account, the plaintiff could not recover for the same under either count of the complaint. The following charge was given for the defendant "If the jury believe, from the evidence, that the damage to plaintiff, for which defendant is liable, is merely nominal, then your verdict should be for the defendant on his plea of tender."

Bilbro & Moody, for appellant.

Virgil Bouldin, for appellee.

McCLELLAN J.

The complaint contains three counts, one for the value of trees cut and removed by Gay from the lands of Bynum, one for the conversion of such timber, and one in trespass. The pleas were the general issue and of tender. The judgment entry recites that issue was joined on the pleadings; thus, as we construe it, including the plea of tender. The bill of exceptions recites that the "plaintiff on the trial moved to strike the plea of tender from the file." The court overruled the motion. After having joined issue on the plea, there was no error in overruling plaintiff's motion to strike. He should have, if so advised, assailed the plea before joinder in issue thereon. Rudulph v. Wagner, 36 Ala. 698. The plea was not proven beyond dispute. The sum tendered and paid into court, as averred in the plea, was $22.16, and there were tendencies in the proof to the effect that timber of a greater value was cut and removed or appropriated, from the land of plaintiff, at the instance of the defendant.

The remaining errors assigned relate to the oral charge of the court and to the refusal of special charges requested for plaintiff and one such charge given for defendant. In brief of counsel for app...