Thornton & Co. v. Savage , 120 Ala. 449 ( 1898 )

McCLELLAN, C. J.

This action is prosecuted by Savage on a written contract entered into by him andH. C. Thornton & Co. on April 23, 1897, which is in the following words “This agreement made and entered into, this the 23rd day of April, 1897, by and between D. C. Savage, of the first part, and H. C. Thornton & Co: of the second part, and witnesseth, that the first party for and in consideration of five cents per tie has sold to the second party all the timber on the N. $ of S. W. i and N. ¿ of S. W. i of S. W. i section 10 T. 21, R. 11, in Chilton County, Aid., suitable for making cross-ties, and the second party agrees and binds himself to make into cross-ties every tree on said land which can be used for said purpose of making cross-ties, and not pick and cull out the best of said timbers and leave such as might be classed undesirable or hard to work into ties, and the second party agrees to cut and remove said timbers within 120 days from said land, and pay for the same at five cents per tie, as above, every fifteen days, beginning on the 13th day of May, 1897, and to have all paid for by the time the cutting and making of ties is completed, and the party of the first part, and the party of the second part, reserves the right to employ a man and they to select a third, all of whose judgment are known to be good on timbers suitable for making cross-ties, to look over said land from time to time, and see if any trees or timbers are left which are suitable for making'into cross-ties, and in case such is found, the second party is to pay a penalty of five cents per tie, for whatever such trees or timbers would amount to if made into cross-ties.”

This contract being the foundation of the suit and its execution not being denied by plea verified by affidavit, was, of course, admissible in evidence without proof of execution. — Code, § 1801.

On the trial it was shown that defendants set about cutting and removing.cross-ties from the land and continued therein until they had taken fourteen hundred ties, when they ceased work under the contract, claiming that they had cut all the timber from the land that came within its terms. Plaintiff’s insistence is, that defendants left a large amount of such timber on the land uncut for which he is entitled to be paid at the contract rate ; and this is the issue in the case : Whether timber embraced in the contract was left standing on the land, and, if any, how much. On this issue plaintiff took the depositions of four witnesses shown to have special knowledge in the premises and to be experts in respect to what trees were suitable to be made into cross-ties and the number of cross-ties in given standing trees, etc., etc. Two of these witnesses said they had given the land and the timber left by defendants upon it a careful general examination with a view to estimating the number of ties in said timber, and that in their judgment “the timber left on the land would make 6,000 cross-ties.” The other two of these witnesses examined the land and timber together. They counted the trees left on the land by defendants, which in their judgment were within the terms of the contract, and calculated the number of ties in each tree; and they each testified that ‘‘the number of cross-ties in the trees remaining on said land would be 6,291.” The defendants moved to exclude the testimony quoted of these several witnesses, and excepted to the court’s action in overruling their motions. These exceptions are without merit. The witnesses were clearly competent to. give their estimates, based upon such inspection as they are.shown to have made, of the number of ties in the timber covered by the contract remaining on the land. And from the context of the evidence in which these several statements occur, it is manifest that by them the witnesses meant that in the timber left on the land suitable for cross-ties there were the number of ties stated by them respectively. Moreover, by the terms of the contract every tree which could be used for the purpose of making cross-ties ivas timber suitable for cross-ties; and this testimony that the timber would make a certain number of ties is no more nor less than to say that the trees referred to could be used for that purpose, and hence were suitable for cross-ties.

We are unable to see any ground of objection to the testimony of the witness Savage as to the character of the trees left on the land after defendants quit work. That was indeed the issue in the case — whether the trees were of a character suitable for cross-ties — and to its elucidation it was certainly proper that the characteristics of the trees so left should be shown to the jury.

Nor do we think the court erred in allowing the witness to testify, in the connection just stated, that “the timber left standing on the land and not cut by defendant is as good as that which he had cut and made into ties.” The witness was familiar with the timber, that-which had been cut as well as that which remained. He was competent to make the comparison stated in his testimony. And the fact that like timber had been made into cross-ties by defendants was evidence that the remainder could be used for that purpose and was “suitable for cross-ties.”

Defendants undertook to cut all the timber on the land suitable for cross-ties. This undertaking was absolute and unconditional. It was in nowise dependent upon the conformation of the land itself; and hence testimony that the land was broken or that it was level was outside of any issue in the case, and was properly excluded.

The fact that one Wilson, a stranger to the transactions involved in this suit, in the presence of the plaintiff before this contract was entered into, stated his opinion, or estimate as to the number of ties in the timber on the land, could not have shed any legitimate light on any issue in the case. Plaintiff was under, no obligation to take issue with him on the penalty of having his silence construed as an admission ; and besides it is not made, nor proposed to be made to appear what the estimate was, nor whether plaintiff dissented from it.

The court properly excluded the testimony offered by the defendants to.show what proportion of the ties which they did cut and remove from the land “were rejected.” The rejection referred to, we suppose, was that of some third party to whom defendants sold the ties. It was res inter alios acta, so far as plaintiff’s rights are concerned.. And, if this were not so, it is inconceivable that the fact that defendants had cut defective ties from the land could have any bearing upon the inquiry as to how much timber suitable forties remained.

The testimony of the witness Savage when called in rebuttal as to calling Scott’s attention to several bodies of timber remaining on the land after defendants had ceased cutting ties and as to his, Scott’s, admitting that there was suitable timber left, and giving an immaterial excuse for not having cut it, was unobjectionable. Scott was the agent of defendants in and about cutting the timber in question. He had testified as a witness for them, and his testimony was not in consonance with his statement as testified to by Savage. And he had been asked in a cross-interrogatory, to which there was no objection, whether he had not made this statement under the circumstances and in response to Savage’s calling his attention to bodies of uncut timber testified to by Savage. To this interrogatory he made no answer. Having thus had his attention drawn to this conversation and his statement made in it which was at war with his testimony in the cause, it was entirely competent for the plaintiff by way of impeachment of Scott’s testimony, to prove the whole of that conversation. And it is an error to suppose that the fact that Savage called Scott’s attention to uncut bodies of timber was intended as original evidence that there was such timber. It w.as. merely inducement to Scott’s'statement made in respopse, and necessary to be shown as a part of the conversation in which the conflicting statement of Scott was made.

It suffices to justify the exclusion of Scott’s testimony as to the offer he made Scroggins to cut ties, that it is not responsive to the interrogatory under . which the statement was made. •

Common knowledge and the evidence in this case concur to show that freedom from sap is not an essential quality of timber suitable for cross-ties- The two charges refused to defendants were faulty in declaring the contrary, if not also in other respects.

We find no. error in the record, and the judgment must be affirmed.

Affirmed.