Steen v. Swadley

• Decision Date: 05 June 1900
• Citation: 28 So. 620,126 Ala. 616
• Parties: STEEN v. SWADLEY.
• Court: Alabama Supreme Court

28 So. 620

126 Ala. 616

STEEN v. SWADLEY.

Supreme Court of Alabama

June 5, 1900

Appeal from law and equity court, Tuscaloosa county; J. J. Mayfield Judge.

Action by George E. Swadley against V. E. Steen. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This action was brought by the appellee to recover the amount alleged to be due the plaintiff from the defendant for timber which the defendant had cut from the plaintiff's property under a written contract existing between the parties. Both the plaintiff and the defendant were nonresidents of Alabama. The suit was instituted in Tuscaloosa county on January 1 1898. The summons and complaint were executed upon the defendant by the sheriff of Tuscaloosa county on January 1 1898. The complaint, as originally filed, contained the common counts, and also claimed the amount sued for as due by contract. The several amounts were alleged to be due in said complaint on August 1, 1891. The defendant filed the plea of the general issue, and also the plea of the statute of limitations. The plaintiff filed a replication to the plea of the statute of limitations, in which he averred that from the time the cause of action arose up to the time of the institution of the suit the defendant had not been a resident of the state of Alabama, and had been absent from the state of Alabama, since the execution of the contract sued on, up to a short time before the institution of the suit, and such absence had been for a sufficiently long time to keep the cause of action from being barred by the statute of limitations. The defendant demurred to these replications upon the ground that the account the cause of action declared on was made and was to be paid without the state of Alabama and that the defendant, at the time of making of the account was not, and has not since been, a resident of the state. This demurrer was overruled, and the defendant duly excepted. Thereupon the defendant filed a rejoinder to the replication in which he set up that the account declared on by the plaintiff was made, not in the state of Alabama, but in the state of Tennessee, and that at the time of making said account the defendant was not a resident of the state, and has not since been a resident of the state, of Alabama, and that the contract declared on by the plaintiff was neither made nor agreed to be performed in Alabama. To this rejoinder the plaintiff demurred upon the grounds: (1) That the residence or nonresidence of the defendant is irrelevant, and that the rejoinder presents no material issue in the case. (2) The exception to the statute of limitations made by section 2805 of the Code applies to an absence from the state of any person during the period within which a suit might be brought against him, and is not limited in its operation to residents of the state of Alabama. This demurrer was sustained, and the defendant duly excepted. The plaintiff subsequently amended his complaint by adding a count in which he declared upon a contract, and sought to recover the amount stated in the original complaint as being due from the defendant for a certain quantity of timber which was furnished to the defendant under said written contract. The defendant filed a plea of non est factum, in which he denied the execution of said contract. Upon issue joined upon the plea of the general issue and the plea of non est factum, the trial was had. The evidence for the plaintiff tended to show that the plaintiff and the defendant, who were residents of the state of Tennessee, entered into a contract; that the defendant represented himself to be a contractor engaged in constructing a railroad, and that, after negotiations between him and the plaintiff, they entered into the contract sued on, in which the plaintiff agreed to allow the defendant to cut oak timber from the plaintiff's lands, the defendant to pay him $5 per 1,000 feet. This contract was dated June 26, 1890, and was signed by the plaintiff and the defendant, and their signatures were attested by one W. P. Norris and W. P. Alexander. Both the plaintiff and W. P. Norris, the attesting witness, testified to the execution of this contract on the part of the defendant. Other witnesses introduced for the plaintiff testified to the fact of the defendant's cutting timber from the plaintiff's lands. The defendant, as a witness in his own behalf, testified that he did not sign his name to the contract which was introduced in evidence, and which purported to be a contract between him and the plaintiff, and that he did not authorize any one to sign said contract for him; that at the time referred to in the testimony of the witness for the plaintiff he was not an independent contractor, but was working as a subcontractor for one Kenebeck; and that, if there was any arrangement or agreement on the part of plaintiff for the cutting of timber from his property, it was with Kenebeck, as the original contractor, and that in cutting the timber he was acting as Kenebeck's agent. The defendant introduced several witnesses, who, after having testified that they knew the defendant, and were acquainted with this handwriting, expressed their opinion that the signature of the defendant's name to the contract sued on was not in the defendant's handwriting. During the examination of several of the witnesses for the defendant, they were each separately asked if they knew the defendant's financial condition at the time of the alleged execution of the contract offered in evidence, and during the spring and summer months of the year 1890. To each of such questions the plaintiff separately excepted, upon the ground that it called for illegal, irrelevant, immaterial, and inadmissible evidence. The court sustained each of the objections, and the defendant...