Robinson Lumber Co. v. Sager

• Court: Alabama Supreme Court
• Writing for the Court: McCLELLAN, J.
• Citation: Robinson Lumber Co. v. Sager, 199 Ala. 675, 75 So. 309 (Ala. 1917)
• Decision Date: 19 April 1917
• Docket Number: 5 Div. 658
• Parties: ROBINSON LUMBER CO. v. SAGER.

75 So. 309

199 Ala. 675

ROBINSON LUMBER CO. v. SAGER.

5 Div. 658

Supreme Court of Alabama

April 19, 1917

Appeal from Circuit Court, Elmore County; W.W. Pearson, Judge.

Action by J.H. Sager against the Robinson Lumber Company. From a judgment, sustaining judgments in justice court for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. Reversed and remanded.

Frank W. Lull, of Wetumpka, for appellant.

J.M Holley, of Wetumpka, for appellee.

McCLELLAN J.

This suit was begun in a justice's court, by Sager against the Robinson Lumber Company, the trade-name in which W.C Robinson conducted his lumber business, and was carried by appeal to the circuit court. The complaint in the circuit court contained the single common count, which claimed as for work and labor done by the plaintiff for the defendant.

During the trial the plaintiff was permitted, over defendant's objection, to amend the complaint by introducing W.C. Bullard as the nominal plaintiff, suing for the use of Sager. There was no error in allowing this amendment, nor in overruling defendant's objection. Smith v. Yearwood, 73 So 384, where the point was ruled against the defendant's (appellant's) contention. The introduction of Bullard did not effect a change of party plaintiff; the usee, Sager being throughout the real, sole party plaintiff.

From the evidence it appears that the contract for services upon which the plaintiff relies was a contract made with Ballard not with the defendant. The existence of an express contract, which was here shown, precludes the legal implication of an obligation with respect to the same subject-matter. A.G.S. v. Moore, 109 Ala. 393, 19 So. 804; Alexander v. Ala. Wes. R.R. Co., 179 Ala. 480, 484, 485, 60 So. 295. The...