Fletcher v. Prestwood

McCLELLAN, C. J.

The circuit court erred in giving-charge 2, requested by the 'defendant. The defendant urns, by the terms of the contract, to run and saw plaintiff’s logs “With all due diligence and as fast as water will permit,” The further stipulation, to the effect that the contract should terminate at the end of eight months from its date, was intended to provide that work under the contract, as well by the defendant in running and sawing the logs as by the plaintiff in delivering the logs in defendant’s ditch and waterways, should cease after that time, but it was not intended to relieve the defendant from running and sawing the log® with due diligence and as fast as water would permit, short of that time. If, for illustration, the plaintiff had delivered five hundred logs in January, 1900, and with due diligence, water permitting, these logs could have been sawn into, timbers during the ensuing month,' but were sawn and the timber delivered to the plaintiff within the eight months’ limitation, this unnecessary delay would have constituted a breach of the contract for which plaintiff would have been entitled to* recover whatever damages he sustained by the delay, whether resulting from depreciation in. the value of timbers meantime, or from deterioration in the logs while they were left unsawn during the unwarranted delay. There was evidence tending to show that the defendant did not exercise the diligence which the contract required of him in respect of sawing the five hundred ■and odd logs plaintiff delivered in January, February, March and April, 1900; that, but for his default in this regard, the sawn, timbers could and would have been delivered to the plaintiff long before the end of the eight months’ period, and that such timbers were more valuable when they should thus have been sawn and delivered than at the expiration of the eight months. The charge was clearly erroneous in stating the basis for the computation of damages, and may well have led the jury to the conclusion they reached, that plaintiff had not been damaged at all.

Charge 12, to say the least, was confusing- and misleading. The defendant had no right under the contract to postpone the running and sawing of plaintiff’s logs while he ran and. sawed his own. Nothing indeed but the want of sufficient water for the operations would justify the delay which the evidence show occurred with respect to sawing plaintiff’s logs; and the stipulation as to “Water permitting” has reference to the natural conditions, such as drouth and the like, bearing upon the supply of water in the ditch and wasteways, and does not cover the fortuitous breaking of defendant’s dam. — Jones v. Anderson, 82 Ala. 302.

Of course this plaintiff was not injured in respect of that part of the logs and timber which did not belong to him, but to his brother, who was not a party to the action.

On another trial, if it is made to appear that the witnesses, Henry and J. H. Fletcher, know the capacity of defendant’s mill and' waterways, they should be allowed to testify as to the number of logs that could have been “Run”’ and the number that could have been sawn, a day, while plaintiff’s logs were in readiness.

The other rulings of the trial court are free from error.

Reversed and remanded.

Haralson, Dowdell and Denson, J. J., concurring.