Cathcart v. Webb & Morgan

• Citation: 42 So. 25,144 Ala. 559
• Court: Alabama Supreme Court
• Decision Date: 06 June 1905
• Parties: CATHCART v. WEBB & MORGAN.

42 So. 25

144 Ala. 559

CATHCART v. WEBB & MORGAN.

Supreme Court of Alabama

June 6, 1905

Appeal from Circuit Court, Jackson County; A. H. Alston, Judge.

"Not officially reported."

Action by Webb & Morgan against John Cathcart. From a judgment in favor of plaintiffs, defendant appeals. Reversed and remanded.

Plaintiffs' evidence showed that they sold lumber to defendant under a contract whereby they were to deliver it at the mouth of a certain creek, and that when it arrived there defendant was notified and informed that, as the creek was rising precaution should be taken to prevent the submerging of the raft, and that thereafter defendant notified plaintiffs that he would not receive the lumber because the raft was not properly constructed. It appeared that the raft sank, and that after submersion one Wilburn secured certain logs and sold them to defendant. The court refused a written charge to defendant numbered 3: "The court instructs the jury that, if the defendant contracted to purchase from the plaintiff the timber on the Vaught land at a stated price all to be rafted and delivered to the defendant in raft at mouth of South Santa creek, and that the defendant refused to receive said raft when offered to him at the mouth of said creek, then the plaintiffs cannot recover in this suit for the logs in the raft, nor for rafting them, whether said raft was properly constructed or not."

Virgil Bouldin, for appellant.

J. E Brown and Mil Moody, for appellees.

SIMPSON J.

This was an action by appellees against appellant for timber and for labor in rafting timber, etc., and the principal matter in controversy is as to what the real agreement between the parties was; the plaintiffs claiming that defendant had purchased certain logs in a raft from one Vaught, and had employed plaintiffs to raft them to the mouth of South creek on the Tennessee river, and the defendant contending that he purchased the logs from plaintiffs, and that they were to be delivered in a raft at the mouth of said creek "in good shape for floating."

Taking up the assignments of error in the order presented by appellant's brief: Charge 3, requested by defendant; was properly refused. If the defendant purchased from the plaintiffs the timber, to be delivered in a raft at the mouth of the creek, when the plaintiffs delivered the raft there in accordance with the contract, if they did so, this performance constituted a...