Johnson v. McFry

• Decision Date: 08 April 1915
• Docket Number: 320
• Citation: 68 So. 718,13 Ala.App. 619
• Parties: JOHNSON v. McFRY.
• Court: Alabama Court of Appeals

68 So. 718

13 Ala.App. 619

JOHNSON v. McFRY.

No. 320

Court of Appeals of Alabama

April 8, 1915

Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

Detinue by Jim McFry against J.E. Johnson for a bale of cotton. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

See also, 68 So. 716.

Charles F. Douglass, of Anniston, for appellant.

Blackwell & Agee, of Anniston, for appellee.

PELHAM P.J.

[1BF3] The case was tried by the court without a jury, and a special finding of facts made by the court ex mero motu. When a bill of exceptions is reserved and a finding thus made is presented on appeal, this court will examine and determine whether the facts are sufficient to support the judgment Sayre v. Weil, 94 Ala. 466, 10 So. 546, 15 L.R.A 544. In reviewing the judgment appealed from, the only question open for consideration is whether the judgment rendered is supported by the facts as found by the court. Wilson v. State, 10 Ala.App. 158, 64 So. 510, and authorities cited on this proposition on page 160. But the court must directly and affirmatively find every fact in issue essential to the right of recovery, or the judgment pronounced upon the finding cannot be sustained. Betancourt v. Eberlin, Adm'r, 71 Ala. 461; Bibb v. Hall & Farley, 101 Ala, 79, 87, 14 So. 98.

This was an action in detinue for a bale of cotton, alleged by plaintiff in the court below (the appellee here) to have been raised by one Joe Brown on the plaintiff's land during the year 1913. These averments, as laid in the complaint, constituted one of the issues upon which the appellee's right of recovery depended, but we do not think it directly and affirmatively appears from the facts found by the court that the particular bale of cotton levied upon and involved in this suit was raised by Brown on the plaintiff's land during the crop year of 1913. But, however this may be, and whether the failure to find the essential fact pointed out is such a fatal omission as would necessitate our saying that the judgment rendered is not supported by the facts as found by the court, we are bound to hold, in conforming our holdings to the decisions of the Supreme Court (section 10 of the act approved March 9, 1911 [Acts 1911, p, 100]), that the conclusion reached by the court that the contract between Brown and McFry was one of hire, within the provisions of section 4743 of the Code, was not justified by the facts found. This is the real question sought to be presented and the cardinal proposition involved in the appeal. A disposition of it is a determination of all the questions presented which are discussed and insisted upon by the parties in briefs of counsel.

In the special finding of facts the court found that McFry and Brown made an agreement for the cultivation of a certain tract of land, under which McFry agreed to furnish the land and a mule, and Brown agreed to furnish the labor to cultivate the crop, which was to be divided equally; that it was customary to use commercial fertilizers for making the crops under such a contract as made between the parties, each party bearing half of the cost of the fertilizer; that subsequently the parties...