Cathcart v. Webb , 144 Ala. 559 ( 1905 )

SIMPSON, J.

This was an action by appellee against appellant for timber and for labor in rafting timber, etc., and the principle matter in controversy is as to what the real agreement between the parties was; the plaintiffs claiming that- defendant had purchased certain logs in a raft from one Vaught, and had employed plaintiffs to raft, them to the mouth of South creek on the Tennessee river; and the defendant contending that he purchased the logs from plaintiffs, and that they were to be delivered in a raft at the mouth of said creek “In good shape for floating.”

Taking up the assignments of error in the order presented by appellants brief: Charge 3, requested by defendant, was properly refused. If the defendant purchased from -the plaintiffs the timber, to be delivered in a raft at the mouth of the creek, when the plaintiffs delivered the raft there in accordance with the contract, (if they did so) this performance constituted a binding, executed contract, on which plaintiffs were entitled to ■recover. — American Oak Extract Co. v. Ryan, 104 Ala. 267; Nichols v. Moore, 100 Mass. 523; Schneider v. O. P. R. R. Co., 20 Oregon 172; Barton v. McKelway, 22 N. J. L. 165;

And, consequently, the court did not err in giving-charge No. 1 on request of the plaintiff, nor in the oral cl arge numbered one, excepted- to by defendant. The court erred in permitting the witness, Morgan, to be asked what he- said to Wilburn.-Martin v. State, 119 Ala. 1.

Tlie testimony of tlie witness, Wilburn, as to bis raising some of tlie logs, some time after they bad sunk, and selling tliem to the defendant, should have been excluded, on the motion of defendant, as that was entirely irrelevant to the issue involved in this case.

The objection of defendant to the testimony of the witness, Black, in regard to his assisting Wilburn to raise the logs and take them to Decatur, should have been sustained, as that matter was totally irrelevant to the issues involved in this case.

For the errors specified, the judgment of the court is reversed and the cause remanded.

McClellan, O. J., Tyson and Anderson, JJ., concurring.