McCloud v. Flournoy
| Decision Date | 09 January 1912 |
| Citation | 57 So. 630,3 Ala.App. 547 |
| Parties | MCCLOUD v. FLOURNOY. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Russell County; M. Sollie, Judge.
Action by J. W. McCloud against J. M. Flournoy on the common counts and on a special contract for the price of certain crossties. Judgment for defendant, and plaintiff appeals. Affirmed.
In response to the complaint the defendant set up that he and plaintiff had a contract whereby the defendant was to cut from certain lands of the plaintiff all the oak timber suitable for making cross-ties, and that after they were cut and sold by the defendant he was to pay the plaintiff, out of the proceeds of the sale of the ties, the sum of 8 cents for each tie sold by him; that the defendant cut 1,314 ties, and from the ties so cut had sold 263 ties, and paid the plaintiff the sum of 8 cents per tie for said number, and had proceeded to begin to haul out for sale the remainder of said 1,314 ties, and thereupon the plaintiff notified the defendant to stop hauling the ties from said land, and in pursuance of said notice the plaintiff stopped, and in a short time thereafter a large number of said ties were burned without fault on the part of defendant, to wit, 708 ties, of the value of $247.80, which sum the defendant seeks to set off against plaintiff's demand. As a reply, the plaintiff set up, in short, that the defendant waived the breach by plaintiff set up in said plea.
The motion for the new trial contains the following charges among others, for grounds:
O. S Lewis, for appellant.
Glenn & de Graffenreid, for appellee.
The bill of exceptions was presented to the trial judge, and signed by him, within 90 days from the date of the judgment overruling the motion for a new trial. This being true, so far as it pertains to the motion for a new trial, it was presented and signed in time, and may be looked to for the purpose only of revising the rulings on that motion. Code, § 3019; Cassells' Mill et al. v. Strater Bros. Grain Co., 166 Ala. 274, 51 So. 969. It follows that the motion to strike the bill of exceptions must be overruled.
The principal contention of the appellant is that his motion for a new trial should have been granted on the grounds stated in it, which suggested that the court had erred in refusing certain written charges requested by him. In view of the nature of the controversy between the parties and the evidence bearing upon it, each of those charges might have been understood as involving ...
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