Rehearing
Denied Feb. 5, 1909.
Appeal
from Circuit Court, Limestone County; D. W. Speake, Judge.
Action
by George W. Dickerson against John G. Finley for breach of
contract. From a judgment for defendant, plaintiff appeals.
Reversed and remanded.
Count
3: "Plaintiff claims of defendant the sum of $10,000 as
damages, for this: That, whereas, on, to wit, the 27th of
May, 1906, defendant, under and by the name of J. G. Finley
entered into a contract with plaintiff in words and figures
as follows: 'State of Alabama, County of Limestone. This
agreement, entered into by and between J. G. Finley, of
Decatur, Ala., and George W. Dickerson, of Florence, Ala
witnesseth: That the said Finley, being the owner of the
island in the Tennessee river below Decatur, Ala., known as
"Finley's Island," and the owner of the
standing timber thereon, and of a sawmill now on said island
run by steam, and also the owner of cattle, mules, and
horses, teams thereon, herewith agrees to furnish to said
Dickerson all his standing timber, and free use of his
sawmill, and the free use of two yoke of oxen, together with
log wagons, chains, and all other tools necessary for logging
of said timber; also the free use of two mule teams, together
with log wagon and tools. The said Finley agrees to furnish
the necessary oil for mill, and to keep mill in repair, and
to feed for cattle and mules. In consideration of the above
said Dickerson agrees to cut the timber, furnish the drivers
for the teams, all labor in the sawmill, and the stacking of
all merchantable lumber sawed at said mill, free of all
expense to said Finley. Said Dickerson also agrees to
manufacture all lumber in a workmanlike manner. No logs to be
hauled or sawed that will not make merchantable lumber. Any
logs cut that said Dickerson does not consider merchantable
are to remain the property of said Finley and Dickerson in
equal shares. Said Dickerson further agrees to purchase said
Finley's half the lumber, and pay for same, net cash, at
the rate of $9 per 1,000 feet, payments to be made to said
Finley when lumber is loaded on barge. Said Dickerson agrees
to use proper care in handling said Finley's property.
Said Dickerson agrees to pay and does pay $250 upon the
signing of this contract. This money is to be applied on
lumber bought of said Finley as provided in this contract.
Said Dickerson agrees to run said sawmill and cut at the rate
of 40,000 feet a month or more, barring accidents. Said
Finley agrees to give said Dickerson to January 1, 1908, in
which to complete this contract. This same is not to include
bank timber, and not to interfere with land that is cut over.
[ Signed] J. G. Finley.' And plaintiff avers that at the
time of making said contract defendant knew that plaintiff
was making said contract for the purpose of manufacturing
said timber into lumber and selling same at a profit. That
plaintiff, with full knowledge on the part of said defendant
and relying upon the aforesaid contract, of which said
defendant was fully informed, did contract and agree to sell
all of the merchantable lumber manufactured from said timber
cut by him, the said plaintiff, on said island, at and for a
profit of, to wit, $5.50 per 1,000 feet. That said plaintiff
in accordance with the terms of said contract above set
forth, entered upon the performance of said contract, and did
perform a part thereof. That the defendant, notwithstanding
the performance and discharge by this plaintiff of all the
conditions required by said contract to be performed by him,
breached said contract on his part, in this: (1) He proceeded
to cut from off said island a large amount of standing timber
which could have been made into merchantable lumber, and none
of which timber thus cut was bank timber, to wit, 40,000
feet, and upon this plaintiff objecting thereto the defendant
asserted that he (defendant) intended to continue such
cutting. (2) He refused to furnish to plaintiff the teams as
provided under and by the terms of said contract. (3) He
refused to permit the teams of mules contracted to be
furnished by him to do all such work as was required to be
done in the usual method of logging. (4) He refused to
furnish sufficient feed to keep the teams furnished by him
under said contract in such physical condition as that the
same were able to do the work necessary to carry out said
terms of the contract above set forth. (5) He constantly
interfered with the hands employed by this plaintiff, who did
the work required under said contract, and hindered them from
doing all their work essential to the carrying out of the
said contract. (6) He so interfered with the sawyer of
plaintiff that said sawyer refused to proceed further with
the work and left the island and plaintiff's employment.
(7) He so interfered with the driver employed by plaintiff
that he caused him to leave the service of plaintiff. The
plaintiff avers that he offered to hire or purchase other
teams with which to do the work required under said contract,
if the said defendant would pay the hire of same, and that
said defendant refused to permit this plaintiff to hire or
purchase said other teams, and refused to pay a reasonable
hire therefor. Plaintiff further avers that said defendant,
although plaintiff was always, from the time of the making of
said contract until such refusal and wrongful discharge by
the defendant, as hereinbefore set forth, and thence
hitherto, ready and willing to execute, perform, and fulfill
the said contract in all things on his part to be performed
and fulfilled, whereof the said defendant had been often
told; and though said defendant, in pursuance and part
performance on his part has furnished some of the teams
mentioned in said contract, and has accepted and retained the
sum of $250 paid to him by defendant in accordance with the
terms of said contract, nevertheless this defendant
afterwards, as set forth above, wrongfully prevented, and
discharged by such prevention, and injuriously and wrongfully
hindered, this plaintiff from the further execution and
performance of said contract on his (plaintiff's) part,
whereby plaintiff has lost all the property by said
transaction of sale of merchantable lumber to have been
manufactured out of said timber, said lumber amounting to, to
wit, 2,000,000 feet, all to his damage in the said sum."
Count 4
is similar to the first down through the contract, with the
added allegations that there was omitted from the draft of
said contract an agreement that defendant was to permit
plaintiff to have the use of houses on the island for his
hands and employés, and that shortly after the signing of the
contract plaintiff called defendant's attention to this
omission, and it was agreed between them that the same should
constitute a part of said contract. Then follows the
allegation as to plaintiff's sale of lumber, etc., as in
count 3. The allegations of breach are as follows: "(1)
He caused plaintiff's hands to stop working for him, to
wit, his driver and sawyer. (2) He refused to permit
plaintiff to use all of said houses for his hands. (3) He
notified plaintiff that he must move his hands out of the
only house he permitted plaintiff to use as agreed on. (4) He
cut of said standing timber, from which merchantable lumber
could be cut, and none of which was bank timber, mentioned in
the aforesaid contract, from, to wit, 30,000 to 40,000 feet,
and informed plaintiff he was going to continue to cut lumber
on said island. (5) He refused to furnish plaintiff the teams
as provided under and by the terms of said contract. (6) He
refused to permit the teams of mules contracted to be
furnished by him to do such work as is required to be done in
the usual method of logging. (7) He refused to furnish
sufficient feed to keep the teams furnished by him under said
contract in such physical condition as that the same was able
to do the work necessary to carry out the terms of the
contract. (8) He constantly interfered with the hands
employed by plaintiff to do the work required under said
contract, and hindered them from doing the work essential to
carry out the said contract." Then follows the
allegation that the defendant thus prevented and hindered the
plaintiff in the due performance of his part of the contract,
and by so doing discharged plaintiff from further
performance. Then follows the averment that defendant knew
that plaintiff was making the contract for the purpose of
manufacturing the timber into lumber and selling same at a
profit, etc., as in 3.
Count
5: Same as 4 down to and including the contract, with the
following allegation: "That plaintiff, with full
knowledge of defendant, went to large expense in providing
drivers for teams for laborers in the sawmill and for the
stacking of the merchantable lumber, to carry out
plaintiff's part of the contract, and, with full
knowledge of said defendant, plaintiff, by and through the
acts of defendant as hereinafter set forth, was compelled to
keep at large expense hands and laborers, who were forced to
remain idle by and through the acts of said defendant. That
this plaintiff, by and through the acts of defendant as
hereinafter set forth, was caused to use much of his own time
and labor in attempting to carry out his part of the
contract, which time and labor was very valuable. That
plaintiff, in accordance with the terms of said contract
above set forth, entered upon the performance of said
contract. That defendant, notwithstanding the performance and
discharge by plaintiff of all the conditions required by said
contract to be performed by him, breached his said contract
on his part in this: [Here follows the breach as set out
under count 4 down to and including the fifth breach,...
