
    Fletcher v. Prestwood.
    
      Action.on Contract. Were Trial.
    
    (Decided March 2, 1907.
    43 So. Rep. 231.)
    1. Trial; Instructions; Directing Verdict. — -Where there is a.conflict in the evidence as to material isSues it is always proper to refuse the affirmative charge.
    2. Logs and Logging; Contract for Sawing and Manufacture; Performance; Breach. — The placing of the logs along the ditch was not a compliance with the contract requiring a party to deposit in the waste way or ditch of the other party of at least five hundred pine logs suitable to be manufactured into merchantable timber, and relieved the other party to the contract of his undertaking to saw them.
    3. Same; Actions; Instructions.- — A charge asserting that if plaintiff put the logs into defendant’s ditch and defendant agreed to cut them into merchantable timber under the contract in evidence, the jury must find for the plaintiff, was calculated to mislead the jury to conclude that the defendant was liable under the contract without regard to any promise by him to the assignee of the contract to perform it.
    4. Trial; Instruction; Assuming Facts. — -Where there is a conflict in the evidence as to whether the logs delivered were suitable to be manufactured into merchantable timber a charge asserting that the logs delivered were suitable was invasive of the province of the jury and property refused.
    5. Appeal; Harmless Error; Confused Instructions. — The fact that a charge given, which related exclusively to the measure of damages, was confused and misleading does not constitute reversible error.
    6. Log and Logging; Contract for Saioing and Manufacture; Performance; Inherent Defects. — Where the defendant was bound to manufacture logs into merchantable timber under the contract he is not responsible for defects in the timber oil account of too much wain or too much sap in the logs.
    7. Parties; Persons Who May Sue. — A non-assignable contract, not binding on the other party except with his consent, was assigned and sued on by the assignee in the name of himself for the use of himself and another as a co-partner upon the allegation that after the assignment the defendant had agreed to carry out the contract with the plaintiff as such assignee. I-Ield, the partners to whose use the action was brought were merely equitable owners of the contract and the sole parties plaintiff and under Sec. 29, Code, 1890, there could be no recovery by them as the recovery must be based on the legal title to the contract.
    Appeal from Covington Circuit Court.
    Heaid before Hon. H. A. Pearce.
    Action by John E. Fletcher, for the use of John E. Fletcher and Henry L. Fletcher, late partners under the firm name of J. E. & H. L. Fletcher, against J. A. Prestwood. From an order denying a new tiial, plaintiffs appeal.
    Affirmed.
    This action ivas begun by John E. Fletcher, for the use of John E. Fletcher and Henry L. Fletcher, late partners under the firm name of J. E. & H. L. Fletcher, as plaintiffs, who claim $1,000 damages for the breach of the condition of an agreement which is as follows: “This contract and agreement, made and entered into on this 27th day of December, between I. E. Boyett, party of one part, and J. A. Prestwood, paity of the other part, witnesseth: “That said I. E. Boyett agrees to put into or have put into the wasteway or wasteways or on the ditch of the said J. A. Prestwood pine logs suitable for the manufacture of pine sawn timber, not less than five hundred nop more than two thousand logs; and in consideration of the putting in and delivery of said logs into the wasteways or ditch by the said I. E. Boyett, or under his direction, the said Prestwood agrees to run said logs to his mill at his own expense, and to manufacture said logs into sawn merchantable timber, and deliver the same into the river boom owned and controlled by said Prestwood at and for the sum of three cents per cubic foot, taking Ferry Pass measurement as the basis of settlement. And it is further agreed as a part of this contiact that, should the said Boyett, either by or for himself, or under his direction, or his assigns, see fit to put into said ditch any logs not iu a wasteway, the said Boyett agrees to have good and substantial landings erected and operated on or along said ditches; and the said Prestwood agrees on his part to run and manufacture any and all logs put in by said Boyett or under and by Ms direction, with all due diligence and as fast as Water will permit. And we, "the parties to this agreement, agree that this contract shall and will terminate at the expiration of eight months fiom this date.” Signed in duplicate. It alleged that on the day the contract was executed it was duly and legally assigned by Boyett to plaintiff, John E. Fletcher, in writing, and that, after the transfer and assignment of said contract to John E. Fletcher, Prestwood was informed of the assignment, and after receiving such information, and with the knowledge that plaintiff had become the transferee of said contract, Prestwood agreed to carry out and perform the same with plaintiff as assignee. It is alleged that during the months of January, February, March, and April, 1900, plaintiff put into the wasteway or wasteways and on the ditch of Prestwood 515 pine logs suitable' for the manufacture of pine saAvn timber, and then alleged that PrestAvood failed to carry out his part Of the contract, whereby the logs became injured and damaged, etc. Demurrers were interposed to the complaint, and overruled. Defendant interposed pleas A, B, C, I), F, G, H, I, and J; but as demurrers Avere sustained to all except plea D, and as the case was tried upon the general issue and plea D, it is unnecessary to -set the other pirns and demurrers out. Plea D was a denial of a consent to the assignment of the contract and a AArant of knovvledge on the part of Prestivóod that it had been assigned until long after its assignment.
    Tire plaintiff requested the court in writing to give the following charges, Avlrich tire court refused: (2) “If you believe the evidence, the defendant breached- the contract sued on.” (5) '“A delivery of the logs on the ditch of the defendant by the plaintiffs for the piirpose of running to the mill would be a sufficient delivery.” (6) “A delivery of the logs by the plaintiff on the landings of the wasteways and ditch of the defendant, so that they could be run to the mill, would be a sufficient delivery'of the logs.”' (9) “If, under the evidence, you are reasonably satisfied that the defendant undertook to carry out tíre contract, and plaintiff proceeded to deliver and did deliver tinder the contract as many as five hundred pine logs suitable for the manufacture of pine sawn timber on or in defendant’s ditch, on or in defendant’s wasteway, within the time specified by the contract, according to its terms, then it was the duty of the defendant to ran and manufacture any and all logs so put in by plaintiff with all due diligence and as fast as the waters would permit, and defendant would have no right to postpone the running and sawing of plaintiff’s logs while he ran and sawed his own.” (10) “If from the evidence you are reasonably satisfied that defendant undertook the performance of the contract, and plaintiff proceeded to deliver and did deliver under the contract as many as five hundred pine logs suitable for the manufacture of pine sawn timber on or in defendant’s ditch, on or in defendant’s wasteway, within the time specified by the contract according to its terms, then it was the duty of the defendant to ran and manufacture any and all logs so put in by ¡plaintiff with all due diligence and as fast as the watei:s would permit; and if defendant failed to do this, and did not manufacture a portion of the logs until after the 27th day of August, 1900, then this would be a breach of the contract on the part of the defendant.” (A) “If the jury believe from the evidence that the plaintiff put 515 merchantable pine logs into the ditch and into the waste-way'- of the defendant during the months of January, February, March, and April, 1900, and defendant agreed to cut them into merchantable timber under the contract in evidence, they mu.st find for the plaintiff, unless they believe that the water would not have permitted the running of the logs, the manufacture of-the timber, and delivery of the timber into the defendant’s boom within the time specified in the contract.” (B) “If the jury believe the evidence, they must find for -the plaintiff.” (C) “The court charges the jury', if -logs designated, b-v the witnesses as deadheads, low floaters, and dead -logs are suitable for and can be manufactured into merchantable timber, then they will take such logs into consideration in ascertaining if -the plaintiff put ■not less than five hundred pine saw logs into the waste-ways and along the ditch of the defendant which were suitable to be manufactured into merchantable timber.”
    
      The court gave the defendant, upon his request in writing, the following charges: (7) “The court charges the jury that if they believe that the plaintiff instructed the defendant’s sawyer not to cut out of' his logs the worm-eats, and if the defendant’s sawyer acted upon such instruction, and if defendant could have sawed out said worm-eats and leave merchantable timber, defendant would only be liable for the value of the timber which would be cut off in cutting off the worm-eats, together with the depreciation of the market value of timber caused by delay.” (18) “The court further charges the jury that under the contract sued upon in this case it was the duty of the plaintiff to put the logs either into the wast-eways or into the ditch of the defendant, and this obligation is not complied with by put" ting of the logs on the side of the ditch.” (9) The court further charges the jury that under the contract . sued upon it was not the duty of the defendant to roll from the 'bank by the side of the ditch the logs of the plaintiff, but such duty devolved upon the plaintiff themselves.” (1) “The court further charges the jury that the defendant is not liable for a defect in the timber because it has too much wain or too much sap.” (13) “The court further charges the jury that the defendant is not liable for any damage to the timber by reason of the same being sap-damaged, if the timber was in good condition and not sap-damaged at the time of the delivery of .the same to the plaintiff, and the sap damage was caused after such delivery to the plaintiff.”
    There was a verdict for defendant, and the plaintiff moved for a new trial upon the grounds discussed in the opinion and here set out.
    Powers, Albritton, & Alrbitton, B. H. Lewis, and Riley & Wilkeeson, for appellant.
    By interposing the plea of set-off the defendant admitted the validity o,f the contract sued on and the liability thereon. — Grisham v. Bod/num,. Ill Ala. 194; 8t. L. P. R. T. Go. v. McPeters, 124 Ala. 451. Under this state of the case the court erred in refusing plaintiff’s charge 2. As to a proper construction of the contract we cite the following: 9 Cyc. 577, 579 and 588; Bishop on Contracts, §§ 380-383. Applying the rules there laid down it is insisted that the construction of the contract contended for by appellant is. the proper one. Charge E, refused to plaintiff, asserts a correct legal proposition applicable to this cise. — Fletcher v. Prestwood, 38 South. 847. Counsel discuss other assignments of error but cite no authority.
    Stallings & Reid, and Foster, Sameord & Carroll, for appellee.
    Under the facts in this case the question of due diligence in the performance of the contract are questions for the jury.- — Drake v. Voorhees, 22 Ala. 409; Broten v. Johnson, 42 Ala. 211. It having been alleged that the defendant is bound to comply with the terms of the written contract and that defendant agreed to carry out and perform the same with the plaintiff as assignee, fa necessary allegation), Arkansas v. Bel den, 127 U. S. 379; 4 Cyc. p. 22; Clark on Contracts, 524) he plaintiff is bound by the allegation. Council discuss other assignments of error but cite no authority.
   TYSON,, C. J.

The contract, for the alleged breach of which damages are sought to.be recovered, ivas entered into between one Boyett and defendant. Boyett, it appears, assigned it in writing to one of these plaintiffs. Plaintiffs, perceiving it to. be necessary in order to maintain the action, amended their. complaint by averring that “after the transfer and assignment of said contract io plaintiff John E. Fletcher the defendant was informed of the same, and that, after receiving such information and with the knowledge that plaintiff had become the transferee of said contract, he agreed to carry out and perforin the. same with plaintiff as such assignee,” etc. Under the contract, as we construe it, Bovett ivas obliged to put into .the wastewavs or into the ditch-of Prestwood at least 500 pine logs suitable for manufacture into saivn, merchantable timber within the period specified for the termination of the contract. The placing of the-logs along the ditch .of the. defendant wou-ld not be a delivery .to the. defendant of them under the. contract, imposing upon him the duty to run them to his mill for the purpose of being manufactured. And clearly diere would be no compliance with the obligation assumed by Boyett if a less number than 500 were put into the wasteways or the ditch, or, if that number of logs were put into the wasteways or ditch to he transported. if any of them wo:e not suitable to be manufactured into merchantable timber. In short, Boyett’s obligation was to deposit in the wasteways or ditch of defendant at least 500 pine logs suitable to be manufactured into merchantable timber within eight months from the date of the contract. Anything short of this was not a compliance with his obligations under the contract, and lelievod the defendant of his undertaking to saw any of the logs.

Assuming that the averments of the complaint as last amended show a breach of' the contract, entitling the plaintiffs to maintain the action therefor, it is obvious that under the issue as made by the pleas interposed to-it, upon which the case was "tried, the burden of proof was upon them to establish to the reasonable satisfaction of the jury (1) that defendant agreed to perform the contract after its assignment; (2) that plaintiffs deposited the minimum number of logs specified in the contract in the wasteways or ditch of defendant within the required timé; and that at least that number was suita1 able for the manufacture into sawn, merchantable timber. Tliere was a conflict in the testimony as to all of these matters, and whether, therefore, the plaintiffs discharged the burden which was upon them in respect thereto, was clearly a question for the jury. It follows, therefore, that charges designated 2 and B, leqnested by plaintiffs, were properly refused.;

Charges 5, 6, 9, 10, and O were framed upon the theory that a delivery of the logs by plaintiffs on, instead of into, the ditch or wasteways of defendant, -was a compliance with the contract. Their refusal was proper.

Charge A, requested by plaintiffs, was calculated to mislead the jury to conclude that defendant was liable under tbe contract with Boyett without regard to any promise by him to John E. Fletcher to perform it after its assignment to him by Boyett. Charge E assumed that the logs delivered by plaintiffs were suitable to he manufactured into merchantable timber..

This brings us to a consideration of the charges given at defendant’s request. Those numbered 8 and 9 were framed upon a proper construction of the contract with respect to the delivery of the logs into the ditch or waste-ways of defendant, and were properly given..

The only criticism indulged against the correctness of charge 7 is that it was confusing and misleading. This may be conceded, and yet this would not be sufficient to reverse the judgment. Furthermore, the charge could have exerted no possible influence upon th jury’s determination of the question-of the plaintiffs’ right of recovery, since it relates exclusively to the measure of damages in the event any recovery was allowed.

Charge 1 has reference to inherent defects in the timber or logs, for which the defendant, of course, could not be held responsible. It is not insisted that the giving of charge 13 was error.

We are unwilling to affirm that the trial judge erred in denying the motion for a new trial.

Thus far we have only dealt with, the questions which were raised and presented for the determination of the trial court, and have disposed of the rights of the parties along the lines upon which that court seems to have determined them. There is, however, another question which we feel constrained to notice, lest our failure to do so might be misconstrued and misunderstood. It is this: Whether a recovery can be had by the two plaintiffs for whose use or benefit the action was brought? Under the statute they must be considered as the sole and real parties plaintiff on the record. Section 29 of the Code of 1896; Reese v. Reaves, 131 Ala. 195, 31 South 447; Cowan v. Campbell, 131 Ala. 211, 31 South. 429. The contract, which is confessed by plaintiffs to be not assignable, becomes obligatory upon defendant in favor of John E. Fletcher only by virtue of his promise to Fletcher to perform it. It is upon this promise, which is- alleged in the complaint, that John E.. Fletcher had a right of action for its beach; Without it, under the pleadings, John E. Fletcher, although the contract had been transferred in writing to him, could not have maintained the action.—Arkansas Valley S. C. v. Belden, 127 U. S. 379, 8 Sup. Ct. 1308, 32 L. Ed. 246; Clarke on Contracts* pp. 523, 524. The effect of the promise by defendant to perform the contract, after its assignment to John E. Fletcher-, was to substitute him in the place of Boyett as a party to the contract. It was in substance the making of a new- conract between Fletcher and. Prestwood which of course was not assignable by Fletcher and. unenfoicible by any one else, or by him jointly with another person, in the absence of a consent by Prestwood that such other person might become a part owner with Fletcher of the contract. John E. Fletcher, by virtue of the promise to him, became the owner of the legal-title to the contiact; and it is only in this right that it is capable of enforcement by him. His right of action therefore, cannot be maintained upon a mere beneficial ownership or equitable ownership; nor can the action be maintained upon a like ownership or title in himself and Homy L. Fletcher. It is not averred that the defendent ever knew- of the part ownership of Henry L. Fletcher in and to the contract, or that he assented to his becoming a party to the contract. No such assent being averred or shown., there could be no recovery by him, or by him jointly Avitli John E., conceding that it is shoAvn that the latter was substituted for Boyett as a party to the contract.

Affirmed.

Haralson, Simpson, and Denson, JJ., concur.  