Webb v. Hawkins Lumber Co.

• Decision Date: 21 December 1893
• Citation: 14 So. 407,101 Ala. 630
• Parties: WEBB v. HAWKINS LUMBER CO.
• Court: Alabama Supreme Court

14 So. 407

101 Ala. 630

WEBB v. HAWKINS LUMBER CO.

Supreme Court of Alabama

December 21, 1893

Appeal from circuit court, Jefferson county; W. R. Houghton, Special Judge.

Action by the Hawkins Lumber Company against B. T. Webb to recover the price of lumber. From a judgment for plaintiff, defendant appeals. Reversed.

Albert E. Barnett, for appellant.

John H Miller and F. E. Blackburn, for appellee.

McCLELLAN J.

This cause was heard and determined by a special judge of the circuit court, on its merits, without the intervention of a jury. Judgment was rendered for the plaintiff, to which the defendant excepted, and the propriety of the court's action in that respect is now presented for our consideration by a bill of exceptions; and it becomes our duty to review that conclusion and judgment on the evidence, "without any presumption in favor of the court below," and, if we find error, to render such judgment in the cause as the court below should have rendered, or to reverse the judgment of the trial court and remand the cause for further proceedings, as to this court may seem right. Acts 1888-89, p. 800, § 7.

The action is on an account for goods sold. The appellant and one Vann were joined as defendants. Vann made default, and judgment went against him accordingly. Webb pleaded the general issue and the statute of frauds. The latter plea presented the real issue in the case. Under it the theory of the defense was that Webb's promise to pay the amount to plaintiff was a promise to answer for the debt of Vann, and not being in writing, was avoided by the terms of that statute, as embodied in the Code, § 1732, subd. 3. On the trial it was shown that both Webb and the plaintiff were timber dealers or manufacturers. Vann sent an order to Webb for certain lumber, which the latter did not have, and which was of a class not manufactured or dealt in by him. Webb was acquainted with Vann, had had dealings with and furnished him lumber before; and at this time there was an arrangement between them, by the terms of which Webb was to supply Vann lumber in payment of the rent of a house which the former had leased from the latter, and was occupying, at a rental of $25 per month. Some rent was due at the time of this transaction. Webb, not being able to fill the order, carried it to plaintiff for the purpose of having it filled by the latter. He had no authority to get the lumber from plaintiff and have it charged to Vann. When the order was presented to plaintiff, with Webb's request that he fill it, plaintiff told Webb that he did not know Vann, and inquired if he was good. To this, Webb replied in the affirmative. Plaintiff again stated that he did not know Vann, "and Webb then said he would guaranty the bill, and pay for it." Plaintiff then shipped the lumber to Vann, according to Webb's directions. The account was charged to Vann on plaintiff's books, and the bill was mailed to him. It was afterwards first presented to him for payment. "He said Webb would pay it, as there was an arrangement between Webb and himself by which Webb was to furnish him lumber in settlement for rent of a house. Plaintiff then saw Webb, who said he was renting a house from Vann, and would make Vann pay the bill, and that Vann had bought the lumber from him. Plaintiff afterwards saw Webb and Vann together, and Webb repeated his statement that the bill should be paid." Plaintiff testified that he looked to both Vann and Webb for payment, and this is relieved from...