Hill v. McBryde

• Citation: 125 Ala. 542,28 So. 85
• Parties: HILL v. MCBRYDE.
• Decision Date: 19 April 1900
• Court: Supreme Court of Alabama

28 So. 85

125 Ala. 542

HILL v. MCBRYDE.

Supreme Court of Alabama

April 19, 1900

Appeal from circuit court, Jackson county; J. A. Bilbro, Judge.

Action by Thomas Hill against T. W. McBryde. From a judgment for nominal damages in favor of the plaintiff, he appeals. Affirmed.

F. A. Bostick, for appellant.

John B. Tally, for appellee.

TYSON, J.

This action was brought by the plaintiff against the defendant for the breach of an agreement in which the defendant promised to pay the plaintiff $225 for services to be rendered by him in floating certain timber owned by the defendant from a certain point on Hurricane creek to Paint Rock Station, a point on Paint Rock river. The only breach of the contract, as alleged, is in these words: "That the plaintiff had placed said timber in said Hurricane creek, and before he had an opportunity to float said timber the defendant removed said timber from said Hurricane creek, and thereby placed it beyond the power of the plaintiff to perform his part of the contract." The defendant filed four pleas. Plea 1 denies the allegations of the complaint. Plea 2 denies that plaintiff placed the timber in Hurricane creek. The other two deny that the timber was removed before plaintiff had opportunity to float it, and the plaintiff's readiness to perform the contract. It was an admitted fact in the evidence that only a portion of the timber (about one-half of it) was placed by the plaintiff in Hurricane creek. The plaintiff has not only failed to prove the breach of the contract as alleged, but the averments of the defendant's plea No. 2 were proven beyond adverse inference. On this state of the pleadings and proof, the defendant being entitled to the general affirmative charge, any errors committed by the court in special rulings are not ground of reversal at the instance of the party appealing, since they could not have injured him. Glass v. Mayer (Ala.) 26 So. 890, and authorities therein cited.

Affirmed.