King v. West End Lumber Co.

Decision Date02 February 1926
Docket Number6 Div. 713
Citation107 So. 33,21 Ala.App. 242
CourtAlabama Court of Appeals

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action by the West End Lumber Company against S.P. King. Judgment for plaintiff, and defendant appeals. Affirmed.

W.S Pritchard and J.D. Higgins, both of Birmingham, for appellant.

Herbert J. Ward, of Birmingham, for appellee.


Appellee brought its action of assumpsit, on the common counts against appellant, King, in the court below, to recover the sum of $200, alleged to be due for certain lumber sold and delivered by plaintiff to defendant, to be used in the erection of a certain house, on a certain lot in Avondale Jefferson county, Ala., then owned by defendant, subject however, to foreclosure sale and redemption rights, which, as we gather, from the testimony of the defendant, was then vested in John B. Reid and wife, Ione Reid.

The case proceeded to trial, before the judge of the court below without a jury, and on the 3d day of October, 1924, the judgment of the lower court was rendered in behalf of the plaintiff and against the defendant for the sum of $218.

A motion for new trial was filed in said cause, based, in the main, upon the ground of newly discovered, evidence, competent and material, and which, it was insisted, would probably change the result of the trial of said cause. To the motion for a new trial was attached the affidavits of three persons and the letter of a fourth.

The evidence for the plaintiff tended to show that on or about the 4th day of May, 1923, one John B. Reid gave to the secretary and treasurer of the West End Lumber Company a certain bill of lumber and building material, and asked for an estimate thereon. The plaintiff estimated said bill at $400. The evidence for the plaintiff further tended to show that the said Reid directed the plaintiff to secure the defendant's approval to said bill; that the agent of plaintiff met the defendant and informed him of the estimate, and that the same had been approved by Mr. Reid, and that he was directed to secure the defendant's confirmation of said estimate; that thereupon the defendant said, "Yes; Mr. Reid and I are building a house at that location, and I have $400 set aside for the lumber for that job for the West End Lumber Company; as soon as half of the lumber is delivered we will pay you $200, and the balance when all of the lumber is delivered." The evidence for the plaintiff further tended to show that said lumber was delivered upon said Avondale lot for the job in question.

The evidence for the plaintiff further tended to show that, at the time of the delivery of said lumber, Mr. John B. Reid was building a house on the Avondale lot for the defendant. The evidence for the plaintiff further tended to show that one of the plaintiff's agents, after the delivery of the greater portion of said lumber and building material, went to the defendant, at his office, and asked him for a check to be applied on said lumber account, that the defendant requested this agent to go to one F.C. Sherrod and see him in regard to this payment, which the witness did, and that thereupon Sherrod and the witness returned to the office, and, after some conversation between Mr. Sherrod and the defendant, the plaintiff received a check for $200 on said lumber account.

In this connection it may be noticed that said F.C. Sherrod, who was introduced as a witness for the defendant, testified, among other things, as follows:

"Mr. Reid was building the house on Forest street at the east end of Avondale Park for S.P. King. The man purporting to represent the West End Lumber Company went with me to Mr. King's office, and waited outside in a hall while I went in and talked to Mr. King. When I came out, this man went with me to the

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