Union Stave Co. v. Smith

Decision Date29 June 1897
PartiesUNION STAVE CO. v. SMITH.
CourtAlabama Supreme Court

Appeal from circuit court, Jackson county; John B. Tally, Judge.

Action by Barton B. Smith against the Union Stave Company to recover the price of standing timber sold by plaintiff to defendant's assignors. From a judgment for plaintiff defendant appeals. Affirmed.

The complaint contained the common counts, claiming $460 as the amount due, and a special count for said sum "due by contract in writing made and entered into by and between the plaintiff and Sharp & Co., by which the plaintiff sold to Sharp & Co. all the white oak timber suitable for stave bolts on certain described lands, in consideration of the sum of three dollars per cord for said stave bolts, of which the said Sharp & Co. were to keep a true and correct account, and pay to the plaintiff the said sum of three dollars per cord on the 10th day of each month for all timber received and removed from the premises during the last preceding month. The defendants composing the Union Stave Company became the successors in the business of the said Sharp & Co., and assumed the performance of the said contract, and received and removed from the premises a large amount of stave bolts to wit, the sum of four hundred and fifty cords, but failed to keep a true and correct account of the same, and to pay the plaintiff for a large portion of said timber, to wit, one hundred and fifty cords, wherefore the said sum of four hundred and fifty dollars remains unpaid. Said several sums with the interest thereon, are due and unpaid." The defendants pleaded: "(1) They never assumed to pay the debt or demand sued on, or any part thereof. (2) They do not owe the debt for which this suit is brought. (3) They have never received and have not any money belonging to plaintiff or for his use. (4) They never entered into any such contract in writing as referred to in said complaint. (5) They did not undertake to perform any written contract entered into by F. W. Sharp & Co. They know nothing of the contract of F. W. Sharp & Co., and are not bound for its performance by any agreement with the plaintiff. (6) They did not assume the performance of said Sharp & Co.'s contract with the plaintiff. (7) That the plaintiff did not own the land off of which said timber was removed, and had no right to sell the timber. (8) There was no consideration for said promise. (9) Want of consideration. (10) Failure of consideration. (11) And that the plaintiff sold that which he did not own, and which he had no right to convey." The plaintiff demurred to pleas 7 and 11, and to each of them, on the grounds: (1) Said pleas present no legal and valid defense to the complaint, in that they do not show that the plaintiff failed to deliver the property sold, or that the defendants have been deprived of the possession or use of the property by the claim of a third person, or any person whomsoever. (2) Said pleas do not show that the defendants have retained or offered to retain said property, or have been deprived of the possession thereof in an way. The demurrer being sustained, the defendants filed a sworn plea, alleging: "That plaintiff is not the owner of the claim on which this suit is founded. It is for timber taken from the lands of H. F. Smith, deceased, and belongs to his heirs. Plaintiff was merely the agent, and had no interest or claim to the timber. The name of the heirs or legatees of H. F. Smith are unknown to defendants. And defendants make oath that this plea is true." The trial was had upon issue joined upon these pleas. The facts of the case are sufficiently stated in the opinion.

Upon the introduction of all the evidence, the defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury believe the evidence, they should find for the defendants." (2) "If the testimony before the jury leaves the matter in such a state of uncertainty as not to afford the jury any reliable data to ascertain the number of cords of wood which defendants received, except by guess or speculation, then the jury should find for the defendants." (3) "The burden of proof is on the plaintiff to make out his case to the reasonable satisfaction of the jury by a preponderance of the evidence, and if the jury believe from the evidence that the timber of Jesse Isbell and other parties was carried to the mill, and manufactured into staves, and shipped with Smith's staves in the 22 cars, commencing the 2d day of June and the 19th day of July, 1891, the date of the attachment, and the jury is unable to ascertain from the evidence the amount of the Smith staves, then the plaintiff has failed to make out his case, and the jury should find for the defendant." There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the sustaining of the demurrer to the pleas 7 and 11, and the refusal of the charges requested by the defendant.

Brickell, C.J., dissenting.

J. E. Browne, for appellant.

Martin & Bouldin, for appellee.

COLEMAN J.

Barton B. Smith, the executor of the will of Henry F. Smith, without legal authority, sold to the defendant the timber growing upon certain lands of his testator. Under the contract, the defendant cut and converted a large quantity of timber, paid for the greater portion of it, and refused to pay for the balance. This suit was to recover that balance. Under the facts in the case the court did not err in refusing charges No. 2 and 3 requested by the defendant. The essential facts upon which the plaintiff's right of action depends are not materially controverted. The legal questions are: Can a vendee in possession of property of an estate, and who acquired possession of it under a purchase from an executor or administrator, retain that possession and defend, when sued for the purchase money by his vendor, upon the ground that the vendor, administrator, or executor from whom he purchased and received possession had no authority to make the sale, and could convey no title? The other question is When a person in possession of land, not claiming it in his own right, sells the same for a consideration, and puts the vendee in possession, can the vendee defend against the recovery of the purchase price, without surrendering possession, upon the ground that his vendor had no authority to sell, and conveyed no title? At the time of the sale of the timber the lands were vested in the children of the testator, one of whom, and probably both, had attained their majority of full age, but the executor had not settled the administration of the estate. The decisions in this state are not consistent, at least upon the first proposition. In the case of Riddle v. Hill, 51 Ala. 224, the administratrix, Hill, sued upon a promissory note given for four mules sold by plaintiff as administratrix. The defense set up in the plea was, in effect, that the mules belonged to the estate of Charles W. Hill, and were sold by the plaintiff without authority, and that the sale was void. In the opinion the court declared "as settled law that a sale of personalty made by an administrator without an order of court, or under an order void on its face for want of jurisdiction, passes no title to the purchaser." There is no conflict of authority, that we know of, under our statute, as to this proposition. This was all the plea asserted. The court went further, however, and declared that "it was also settled that there can be no recovery on the purchaser's promise to pay the purchase money on such sale," citing Beene v. Collenberger, 38 Ala. 647, and authorities there cited. In the case of Beene v. Collenberger, supra, the facts showed that Beene, as the administrator of Ellen Chapman, without authority sold two slaves to Collenberger, and received the purchase money. Subsequently the administrator de bonis non of Ellen Chapman recovered from Collenberger the slaves, the court holding that the sale by Beene was without authority, and null and void. After the recovery of the slaves, Collenberger filed a claim for the purchase money against the estate of Beene, who had died. The question before the court was as to the allowance of the claim. There was really no question in the case which called for an adjudication of the question under consideration in the present case. The court, however, did declare as a proposition arguendo that Beene could not have maintained an action on the contract of sale to Collenberger, the sale being contrary to law; citing in support of the proposition Pettit v. Pettit, 32 Ala. 288, and Fambro v. Gantt, 12 Ala. 298. The only principle decided in the case of Pettit v. Pettit, supra, bearing upon the question under consideration was that the proceeds of a void sale of land sold by an administrator are not assets of the estate. This question was fully considered and reaffirmed in the case of Woods v. Legg, 91 Ala. 511, 8 So. 342, where a distinction was drawn as to the proceeds of an unauthorized sale of personal property by an administrator, and a void sale of realty. In the case of Fambro v. Gantt, supra, the decision of the case was rested fairly upon the proposition that an administrator could not coerce payment of the purchase money for an unauthorized sale of slaves made by him, that such a contract was unlawful and void in its inception, and that no right of action can arise from an unlawful act. This decision announces the proposition that, though the sale was unlawful and void, the administrator could not recover back the property from the purchaser by an action in his own name, on the ground that he was estopped. The general rule is that estoppels are mutual, and we do not well see...

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    • 20 Abril 1909
    ... ... South, 87, 90 Am. St. Rep. 904; Meyer-Marx Co. v ... Ensley, 141 Ala. 602, 37 So. 639; Union Stave Co. v ... Smith, 116 Ala. 426, 22 So. 275, 67 Am. St. Rep. 140. In ... the case of ... ...
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    ...83 N. W. 1103. Such is also the rule in jurisdictions outside of Wisconsin. See McLeod v. Barnum, 131 Cal. 605, 63 Pac. 924;Union Stave Co. v. Smith, 116 Ala. 416, 22 South, 275, 67 Am. St. Rep. 140. The doctrine is stated in 39 Cyc. 1412, par. 6, as follows: “A purchaser who has been in po......
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