Frick Co. v. Monroe

• Decision Date: 25 April 1929
• Docket Number: 8 Div. 93.
• Citation: 220 Ala. 1,123 So. 262
• Parties: FRICK CO. v. MONROE.
• Court: Alabama Supreme Court

123 So. 262

220 Ala. 1

FRICK CO. v. MONROE.

8 Div. 93.

Supreme Court of Alabama

April 25, 1929

Certiorari to Court of Appeals.

Action by Frick Company against W. P. Monroe. Judgment for defendant was reversed and remanded in Court of Appeals (123 So. 260) and defendant petitions for certiorari. Opinion corrected and writ denied.

R. E Smith, of Huntsville, and Thos. B. Hill, Jr., of Montgomery for appellant.

Watts &amp White, of Huntsville, for appellee.

SAYRE J.

This court has uniformly refused to review the Court of Appeals on questions of fact when such review would involve recourse to the bill of exceptions. Postal Telegraph Co. v. Minderhout, 195 Ala. 420, 71 So. 91. In the case here presented the Court of Appeals states the facts and draws its conclusion, and the question now is whether the Court of Appeals has drawn the correct conclusion of law from the facts appearing on the face of its opinion-a question of law.

The Frick Company sued Monroe for the price of a portable sawmill outfit. The statement of facts by the Court of Appeals shows that Monroe ordered a "Left-hand Portable Circular Saw Mill," described in further detail, but not otherwise described with reference to the matter of left-or right-handedness. The Court of Appeals in its opinion states that "The saw shipped by the Birmingham concern was *** right hand." The court's opinion shows that Frick Company shipped all the machinery called for in Monroe's order except the saw. The saw was shipped by the Birmingham concern for and at the instance of Frick Company. Notwithstanding the statement of the case, supra, which we have taken from the opinion of the Court of Appeals, that court said in the further progress of its opinion: "We do not know, and the record does not inform us whether the saw shipped was different from the saw described in the order *** or not. The testimony of the witness Monahan is to the effect that the order was properly filled. If it is different, and the appellee [Monroe, defendant in the trial court] was relying upon that defense, this fact should have been made clear to the court and jury trying the case." The trial court seems to have thought the matter clear, for it gave the general affirmative charge on defendant Monroe's request. The Court of Appeals was of opinion that the trial court should have given the general charge requested by the Frick Company.

As we read the opinion of the Court of Appeals, its conclusion that the Frick Company was entitled to the general charge was based upon consideration of a matter different from the matter of the left or right handedness of the saw. As for that different matter, we have and express no...