Thornton v. Dwight Manufacturing Co. , 137 Ala. 211 ( 1902 )

SHARPE, J.

None of the assignments of error based on tile disposition made of demurrers to pleadings, or rulings- on evidence, have been argued in a,ppellant’s brief, hence those assignments wall be considered, as. waived..; •

In the lumber .which forms .the subject-matter of this suit the plaintiff’s interest was that of a lienor only. Neither under the statute which gives the owner of land a lien for the price of timber sold therefrom (Code, § 2780), nor under 'the terms of the contract whereby tbe timber was sold to Davis, had plaintiff the title or right of possession in the lumber cut from that timber. Therefore, neither the first count of the complaint which is in trespass, nor the second count which is in trover was maintainable. — Hussey v. Peebles, 53 Ala. 432; Thompson v. Spinks, 12 Ala. 155; Dulaney v. Dickerson, Ib. 601.

The third count of the complaint is in case, tbe tort averred being the purchase of the lumber by defendant, with notice of plaintiff’s lien. In the trial of the general issue, joined under that count, the plaintiff in order to recover was under the necessity of proving the material averments of the count including that of notice. The evidence as to. notice is found alone in the testimony of plaintiff’s husband concerning communications made by him to defendant’s superintendent who died before the trial. Neither this testimony nor any other evidence fixes: the date of those communications as being prior to defendant’s purchase and for that reason, irrespective of the matters, set up in the special pleas, we are unable to find that the alleged cause of action w;as proved. ' . .. ’

Judgment affirmed.