Clancy Lumber Co. v. Howell, 6 Div. 247

• Decision Date: 21 January 1954
• Docket Number: 6 Div. 247
• Citation: Clancy Lumber Co. v. Howell, 260 Ala. 243, 70 So.2d 239 (Ala. 1954)
• Parties: CLANCY LUMBER CO., Inc. v. HOWELL et al.
• Court: Alabama Supreme Court

Page 239

70 So.2d 239

260 Ala. 243

CLANCY LUMBER CO., Inc. v. HOWELL et al.

6 Div. 247

Supreme Court of Alabama.

Jan. 21, 1954.

Curtis, Maddox & Johnson, Jasper, for appellant.

Posey & Posey, Haleyville, for appellees.

LIVINGSTON, Chief Justice.

Travis Howell and Joe B. Howell, appellees, instituted proceedings against Clancy Lumber Company, Inc., the appellant, in the Circuit Court of Winston County, Alabama. Said action entailed three counts. The first count claimed $1,428 for 'work and labor done for the defendant by the plaintiffs.' Count Two claimed the same amount due 'by account on the first day of June, 1949.' The third count claimed the additional sum of $50,000 for the alleged breach of a contract.

Appellant filed a demurrer to the complaint.

Appellees, on the first day of the trial, filed an amendment to their original complaint, the amendment striking out original County Three while adding Counts Four, Five and Six. The three new counts claimed $20,000 for the alleged breach of an oral contract which appellees claimed to have existed between them and appellant. The appellant's answer to the complaint, as amended, stated that said oral contract, if it existed, was void and unenforceable as being within the statute of frauds.

After hearing the evidence, the court gave the affirmative charge in favor of appellant upon Counts Four, Five and Six. Thus, the case went to the jury on two counts, the first claiming $1,428 'for work and labor done,' and the second claiming an identical sum due 'by account.'

This appeal was duly instituted subsequent to the jury's verdict of $1,428 in favor of appellees.

Clancy Lumber Co., Inc., operates a lumber business in the Bankhead National Forest. Said company has a contract with the U. S. Forestry Department to do 'selective cutting' within that area, the appellant being required to cut or have cut all trees which are marked by representatives of the U. S. Forestry Department. Such cutting must be completed regardless of the merchantability of timber so marked. Appellant operates by having independent contractors cut out certain strips. The fact that these contractors are independent contractors is not disputed.

An oral agreement was entered into between Jim Reynolds, an officer of appellant, and Joe B. Howell, one of the appellees, during October, 1948. Howell testified that he meant for his brother, Travis, to have been included within the agreement also. The main point in controversy relates to the terms of said agreement. Appellant's testimony tended to show that Joe B. Howell bought the contract which Elbert Ayres and Felton Berry then had with appellant, and that Howell was to operate in the same manner and under the same terms that Ayres and Berry had been operating. The agreement was one terminable at the will of either party, to last as long as Howell could get along with the appellant and the U. S. Forestry Service. There is much conflict, however, as to the manner in which appellees were to receive payment. Appellant's evidence is to the effect that the appellees were to receive an amount equal to 30% of the average net sales on all lumber for the month preceding. To the contrary, appellees claimed that the oral contract guaranteed a minimum of $21.50 per thousand feet of lumber, should 30% of the net average amount to any lesser sum. During the trial of this case, appellees admitted that the appellant at all times paid them upon a basis of 30% of the net proceeds for the preceding month. Thus, the main question to be determined was: Did or did the contract call for any payment other than 30% of the net average for the month preceding?

Appellees offered a considerable amount of testimony relating to their claim that they were damaged by being forced to quit while they had a substantial amount of logs already cut. Appellees stated that they were forced to leave them in the woods and that Clancy Lumber Company refused to take them.

Appellant offered testimony by the U. S. Forester that in the spring of 1949, and immediately prior to the time the appellees quit their operation, he (the forester) reported to appellant that the work of the appellees was not satisfactory and that it was the worst he had found in the forest.

Appellant also showed that in March of 1949 the market for oak lumber fell to such a point that the logging contractors, including Travis Howell, and the appellant held a meeting, and it was agreed that it would be to the advantage of both groups (loggers and lumber company) to stop bringing in the low grade oak timber, even though it still had to be cut if so marked by the Forestry Department. Said evidence was to the effect that all agreed it would keep their average up on the pine and poplar lumber to leave the low grade oak in the woods while the price of the former was still fairly high. Appellant's evidence shows that appellees did not object to the new plan agreed upon by the loggers.

Shortly after the meeting between the logging contractors and the company representatives, however, appellees quit hauling logs. The record shows that the appellees even suggested to other loggers that they also should quit hauling operations.

Subsequently, the appellees again began to haul logs to appellant's mill. Shortly thereafter, however, Jim Reynolds, an officer of appellant, called in Travis Howell. The evidence shows that Howell was advised that the work of appellees was not satisfactory to Clancy Lumber Company, that it was not satisfactory to the U. S. Forestry Department, and that the agreement between appellant and appellees, which had always been terminable at the will of either party, would be terminated. Appellees were advised at the same time that they would have a reasonable length of time in which to wind up their business and to clear the areas that they had already cut.

Testimony of appellant is to the effect that the appellees were allowed more than ample time in which to haul out logs then already cut, but that the appellees did not do so. On the other hand, appellees testified that appellant had told them not to haul in any more oak timber, and had refused acceptance of such wood. Thus, appellees stated, in effect, that they were justified and excused from the completion of full performance under their contract as to the oak timber which they then had already cut and bunched, or had merely cut, but had never hauled in to the appellant's mill.

To the contrary, Monroe Lee, a witness for the defense, testified that he had purchased not only the logging equipment of appellees, but that the appellees had also sold him the labor upon logs then already cut but still in the forest. In rebuttal, Travis Howell testified that the labor upon said logs was not included within the sale of the logging equipment.

Appellant's Assignment of Error No. 2 states the following:

'2. The Court erred in failing to instruct the jury not to consider the argument of appellees' counsel which was: 'The Howells mortgaged their home to buy that equipment,' objection being duly made to said argument. (R. p. 145)'

Counsel for appellant did make a timely objection to said statement, and at the same time moved for a mistrial. The court overruled appellant's motion, to which ruling appellant duly excepted.

The court's ruling was only upon the motion for a mistrial; there never was a ruling upon the objection. Appellant never requested the court to instruct the jury not to consider the statement in controversy. Thus, there was never a ruling of the lower court to which Assignment of Error No. 2, as framed, can be directed. The functions of this court in its appellate character are strictly confined to the action of trial courts upon questions which are presented to and ruled upon by them. We cannot put a trial judge in error for failure to rule on a matter which has never been presented to, nor decided by, him. Lunsford v. Dietrich, 93 Ala. 565, 9 So. 308.

During the trial, appellant offered evidence for the purpose of showing the rate of depreciation on logging machinery upon which appellees claimed they had lost money. Appellees stated that they had to sell the machinery upon short notice after being released by appellant. Inasmuch as the trial judge granted the affirmative charge in favor of appellant on the only count which concerned the value and sale of said machinery, there is no merit in Assignment of Error No. 5.

Assignment of Error No. 6 is based upon the fact that the court sustained appellees' objection to evidence offered by appellant for the purpose of showing that the appellees, in effect, went on strike immediately before appellant terminated their agreement. Since the contract was terminable at the the will of either party, the appellants had complete power and right to release the appellees at any time upon becoming dissatisfied. Therefore, whether or not appellees went on strike was not relevant or material. The court correctly refused the admission of such evidence.

For like reasons, Assignment of Error No. 7 is without...