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(100 So.) the court prior to the beginning of the term of the indictment were not served on the deof court. Acts 1909, § 15, p. 310.

fendant “forthwith," as required by the statIn Harris v. State, 172 Ala. 413, 55 South. ute. Acts 1919, p. 1041. The list of jurors 609, we pointed out the impracticability of and copy of indictment were served four complying with these provisions of the stat- days after they were drawn and five days ute when capital cases are set for a later before the day set for trial. The court “must week of the term.

cause" the list of jurors and copy of indictThe act of 1919, supra, struck out the.word ment to be “forth with served.” It does not “summoned,” thus making the regular jurors appear that any motion was made or the "drawn” for the week of the trial a part of court's attention otherwise called to the dethe venire for the capital case. The effect lay until presented by motions to continue was to make practicable the drawing of the and to quash the venire. This was regular jury and the special venire on the ground to quash the venire. The court did same day. The other provisions of the orig- not abuse his discretion in refusing a postinal statute remain, and the amended statute ponement or continuance. Harris v. State, must be construed in connection therewith.

203 Ala. 200, 82 South. 450; Savage v. State, Section 29, Acts of 1909, p. 317, reads: 174 Ala. 94, 57 South. 469; Cain v. State, 16

“It is hereby expressly declared to be the Ala. App. 303, 77 South. 453. intent of the Legislature in the enactment of [5] State witness Cunningham, a deputy this law, to make the provisions hereof in the sheriff, testified to a conversation with derelation to the selection, drawing, summoning fendant in jail. As a predicate, the witness or impaneling of jurors directory merely and said: not mandatory. The jurors selected, drawn, summoned and impaneled under the provisions

"I did not offer him any violence or hope of of this act, whether at an earlier or later day reward, and did not tell him it would be better than required by this act, must and shall in for him if he made a statement or worse if he all respects be deemed legal, and to possess in did not make a statement, and no one in my full, in every respect, power to perform all of presence or hearing did-any of these things." the duties belonging to grand and petit jurors. That nobody threatened him or offered him And no objection can be taken to any venire violence or abuse in any way. of jurors except for fraud in drawing or sum

He then testified: moning the jurors."

"I asked him why be shot Mary, and he said The requirement that jurors in capital cas- he didn't know unless it was the devil in him.” es be drawn the first day of the term evinces a legislative purpose for a prompt trial of The court did not err in admitting this these grave offenses. Behind it is the evidence as a voluntary confession. McQueen thought that swift and sure punishment v. State, 94 Ala. 50, 10 South. 433; White v. makes the law a greater terror to evildoers, State, 133 Ala. 122, 32 South. 139; Hamilton and that the law's delay encourages crime. v. State, 147 Ala. 110, 41 South. 940; Bur. The accused has also the constitutional right ton v. State, 107 Ala. 108, 18 South. 284; to a "speedy, public trial, by an impartial Crain v. State, 166 Ala. 1, 52 South. 31. jury of the county or district in which the

[6] When a confession is admitted in evi. offense was committed.” Const. 1901, 8 6. 'dence by the court, it is not within the provo

The right of the state or the defendant to ince of the jury to inquire into its competenmove the court to set down the cause and cy. Their only duty is to determine its creddraw the jury at the earliest practical date, ibility and effect. They cannot reject it as and the remedy for abuse of discretion in inadmissible. Charge 22, requested for defailing so to do, are not questions now be- fendant, was therefore properly refused. fore us. It is safe to say the statute does | Washington v. State, 53 Ala. 29; Curry v. not contemplate that such delay shall be State, 203 Ala. 239, 82 South. 489; 4 Michground for quashing a venire or continuing ie's Dig. p. 326, § 490 (2); 16 C. J. 1003, 8 the cause, thus entailing further delay which 2421. the statute aims to avoid.

[7] The good character of defendant can“As soon as practicable thereafter" must, not be proven by specific acts of merit, nor in the nature of things, be determined by the by evidence that he has never been convicted trial judge, as a matter of judicial discre- of crime. Patton v. State, 197 Ala. 180, 72 tion. It appears in the case at bar that the South. 401; James v. State, 14 Ala. App. 652, presiding judge of the tenth circuit had or- 72 South. 299; Cauley v. State, 92 Ala. 71, 9 dered no capital causes set for trial prior to South. 456; 4 Michie's Dig. p. 157, § 230; October 2d, because of a vast number of ap note, 14 L. R. A. (N. S.) 691; Underhill on pealed cases and jail cases. Conditions may Crim. Ev. § 245. be such that the judges, seeking to adminis- [8] The purpose and probative effect of ter the law in the most effective way, find it proof of good character of defendant was best to deal with conditions which may lead properly defined in the court's oral charge. to the commission of the graver crimes. Armor v. State, 63 Ala. 173; Hussey v. State, [3, 4] Like motions were made

on the 87 Ala. 121, 6 South. 420; note, 20 L, R. A. ground that a list of the jurors and a copy | 614.

[9] "Any person who is guilty of murder / 2. Municipal corporations C250-Compensa. in the second degree must, on conviction, be tion for expense of deviation from contract imprisoned in the penitentiary for not less held properly disallowed to contractor. than ten years, at the discretion of the jury."

Where extra profit from installation of sin. The discretion of the jury as to the term of gle sanitary boxes for city instead of half as imprisonment is subject to no other limita- many double boxes more than compensated tion than that it shall be not less than ten single boxes, court properly disallowed claim

contractor for extra cost of cutting boxes into years. They may, when in their opinion the for such cost. facts require it, fix the punishment on a conviction of murder in the second degree at im- 3. Municipal corporations En250—Contractor

held not entitled to recover for extra work prisonment for life. The court's oral charge

and materials furnished after expiration of to that effect was free from error. Miller

contract. v. State, 54 Ala. 155; Paine v. State, 89 Ala.

One contracting in writing with city to in27, 8 South, 133.

stall stated number of sanitary boxes held not (10) The rule for the consideration of the entitled to recover for installation of additional testimony of a witness whose testimony is boxes, after date fixed for expiration of confound to be willfully and corruptly false on tract, under verbal direction of single commis. a material issue was correctly defined in the sioner, though original contract provided for oral charge of the court. Cunningham V.

additional boxes if so ordered. State, 14 Ala. App. 1, 69 South. 982. [11] The intentional firing of a pistol at

Appeal from Circuit Court, Montgomery the person of another, whereby death ensues, County; Leon McCord, Judge. may be murder or manslaughter in the first Action on the common counts and for degree, although there was no intent to kill, breach of contract by C. Y. Bogacki against þut merely to frighten the deceased. The the City of Montgomery. Judgment for intentional doing of an act so greatly danger- plaintiff, and both parties appeal. Reversed ous to human life may supply all the legal and rendered. elements of intent, however free the action

Steiner, Crum & Weil, of Montgomery, for may be from actual purpose to kill. · Charge

plaintiff. No. 4 was properly refused. Bailey v. State,

Arthur B. Chilton and Ludlow Elmore, 133 Ala. 155, 32 South. 57; Fowler v. State, both of Montgomery, for defendant. 161 Ala. 1, 49 South. 788; Lewis v. State, 96 Ala. 6, 11 South, 259, 38 Am. St. Rep. 75;

GARDNER, J. This is a suit by C. Y. Lawson v. State, 155 Ala. 44, 46 South. 259; Bogacki against the city of Montgomery upon 29 C. J. p. 1295, § 69, page 1119, $ 106, page common counts for work and labor done and 1128, § 116.

material furnished, and also special counts The court's oral charge correctly and fully claiming damages for breach of contract be. stated the law on all phases of the case. tween the parties, entered into on February We have examined other refused charges, 4, 1918. The cause was tried before the and find that, so far as they are correct state-court without a jury, and from a judgment ments of the law of the case, they were covo rendered in favor of the plaintiff for $1,ered by the oral charge or given charges. A 273.29, both plaintiff and defendant have detailed discussion is not deemed helpful. prosecuted an appeal.

We find no reversible error in other rul- [1] There was a special finding of fact by. ings upon evidence.

the court pursuant to request of the parties. Affirmed.

Under our statute, as it now exists (section

5361, Code 1907), the special finding of fact ANDERSON, C. J., and SOMERVILLE is here subject to review. Jones v. Hines. and THOMAS, JJ.,

205 Ala. 145, 87 South.,531; Cons. Motor Co. concur.

v. Malik, 207 Ala. 12 92 South. 262.

[2] The contract of February 4, 1918, was in writing, and executed in full compliance with all statutory requirements. Section 1183, Code 1907; City of Mobile v. Mobile

Elec. Co., 203 Ala. 574, 84 South. 816. By BOGACKI V. CITY OF MONTGOMERY, and this contract the plaintiff agreed to furnish, cross-appeal. (3 Div. 596, 596a.)

and the defendant city agreed to accept, 6,000 (Supreme Court of Alabama. Feb. 14, 1924. or more sanitary boxes installed at an agreed Rehearing Denied May 22, 1924.)

price and upon conditions therein stated.

It is well established by the proof, and, in1. Appeal and error 850(1)-Special finding deed, conceded by the plaintiff, as we read of fact subject to review by Supreme Court. the evidence, that the 6,000 boxes were fur

Under Code 1907, & 5361, special finding of nished and paid for. As to the original 6,fact by court at parties' request is subject to 000 boxes, however, the plaintiff insists that review by Supreme Court.

under the direction of the city he was reFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexen

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(100 So.) quired to cut 1,900 double boxes into single ' limit. The language as to the life of the conboxes at a cost of 50 cents extra, which con- tract is plain and unambiguous. stitutes one item in his claim of damages. We therefore do not find ourselves in acThe trial court disallowed this claim, and cord with the finding of fact by the court bewe think properly so. The evidence of the low, to the effect that all the work done and plaintiff himself discloses that the extra prof- material furnished was under the contract it realized from the installation of the two of February 4, 1918. We have previously exsingle boxes, instead of one double box, more pressed our opinion that the plaintiff has than compensated him for the 50 cents extra shown no right to recover upon the original cost per box for the change, and it clearly written contract, which had been fully perappears that upon this transaction he made formed in the year as therein provided, and a profit, rather than suffered a loss. It is evi- the only change made therein resulted in a dent that no recovery was allowed by the benefit rather than a detriment to the plaincourt below as to any matter growing out tiff. of the 6,000 boxes provided for in the origi It results, therefore, in our opinion, the nal written contract.

plaintiff was not entitled to recover, and the [3] The contract contains the following pro- court below committed error in rendering vision: "This contract shall become void one judgment in his favor. The judgment of the year from the date of its award.” By virtue court below will be reversed, and, the cause of this provision, therefore, this contract be- having been submitted to the court without came of no binding force subsequent to Feb- a jury, a judgment will be here rendered in ruary 4, 1919. Subsequent to that date the favor of the city. plaintiff was directed by one of the commis Reversed and rendered. sioners to furnish some additional boxes to be installed outside of the city limits, but ANDERSON, C. J., and SAYRE and MILwithin the police jurisdiction of the city. LER, JJ., Some of these were so installed, and it is evident that the damages awarded to the plaintiff by the court below rested upon an alleged breach of the contract for additional boxes. This "second contract," as it is term SOUTHERN RY, CO, V. BLACKWELL. ed by the plaintiff, was entered into in the

(6 Div. 110.) spring of 1919; the plaintiff testifying that it must have been in April or May of that (Supreme Court of Alabama. May 1, 1924.) year.

1. Carriers 256^Carrier may exact extra As to this "second contract” the plaintiff charge for passenger's failure to purchase acted solely under the verbal direction of one

ticket. of the commissioners; there was no ordi A carrier may exact an extra charge for nance, no meeting of the commissioners, and passenger's failure to purchase a ticket if it no written contract, and, indeed, no contract affords passenger a reasonable opportunity to

do so. of any character, with the city commission, but a mere verbal direction of one commis- 2. Appeal and error Om 1033(3)-Defendant sioner, as above indicated, and no subsequent

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cannot complain of allegation requiring plainratification thereof by the city commission.

tiff to assume unnecessary burden of proof. Under these circumstances, we are of the

Defendant could not complain in a passenopinion the case of Coleman v. Town of Hart- ger's action for damages for ejection of an al. ford, 157 Ala. 550, 47 South. 594, is decisive legation which required plaintiff to assume an adversely to plaintiff's recovery.

unnecessary burden of proof. The order for these additional boxes can- 3. Carriers Omw 381(4)-Evidence held not to not be rested upon the original contract of

show reasonable opportunity afforded passen. February 4, 1918, although such contract

ger to buy ticket. provides for boxes additional to the 6,000,

In passenger's action for ejection for reif so ordered; this for the reason that the fusing to pay excess fare on failure to pur. formal written contract expressly provided chase ticket, it appearing that plaintiff's at

tempt to buy ticket was foiled by other pagthat it should be void after the expiration of sengers ahead of him, and it not appearing that one year from its date. The verbal order by had plaintiff seasonably presented himself he the commissioner, therefore, a few months would have been able to purchase ticket, carafter the expiration of this time, could no rier failed to show that plaintiff bad reasonable more be rested upon the written contract opportunity to purchase ticket. than had it been several years thereafter. 4. Carriers Omw381(1)-Carrier has burden of The provisions in the formal written con

showing that it afforded passenger reason. tract for additional boxes must be construed

able opportunity to purchase ticket to justify

extra charge. in connection with the language as to the

In order to justify its exaction of an extra limitation of the life of such contract, and charge for failure to purchase ticket carrier cannot be construed to extend beyond that has burden of showing that it afforded a prog

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes




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pective passenger a reasonable opportunity to the allegation shown he assumed an unnecespurchase a ticket.

sary burden of proof, and of this appellant 5. Carriers 357-Demand of excess fare is not in a position to complain. held not justified by conductor's ignorance of

(3-5) Appellant's further contention along lack of opportunity to purchase ticket. the same line is that on the evidence ap

Wbere passenger without ticket was eject- pellee failed to make a seasonable effort to ed for refusal to pay excess fare, conductor purchase a ticket within the reasonable time could not excuse himself on ground that he afforded for that purpose on the occasion in was ignorant that passenger did not have rea- question. The substance of the evidence was sonable opportunity to purchase ticket.

that appellee attempted during 7 or 8 min6. New trial o 155-Court held to have no utes before defendant's train pulled away

power to deal with motion filed within less from the station to buy a ticket, but that, than but not submitted for hearing until owing to the crowd of prospective passenafter 30 days after judgment.

gers ahead of him awaiting their turn at the Court lost its power to deal with motion ticket window, he was unable to get a ticket. for new trial filed on April 16, 1923, less than How long the window had been open for 30 days after judgment, where no order was the sale of tickets does not appear; it does made as to future date of hearing, and without intervening order motion was submitted on not appear, therefore, that had appellee preMay 18, 1923.

sented himself seasonably at the window he

would have been able to purchase a ticket, Appeal from Circuit Court, Walker Coun- or, to state the proposition in another forni, ty; Ernest Lacy, Judge.

it was not made to appear tbat, had the Action for damages by Hobart Blackwell ticket window been open for a reasonable

time for the sale of tickets, the crowd abead against the Southern Railway Company. Judgment for plaintiff, and defendant ap

of appellee would not have been out of the peals. Transferred from Court of Appeals way. In order to justify its exaction of the

extra charge the burden was on appellant to under Acts 1911, p. 449, § 6. Affirmed.

show that it afforded prospective passengers Bankhead & Bankhead, of Jasper, for P- a reasonable opportunity to purchase tickets. pellant.

This it failed to show. Nor can the conducCurtis, Pennington & Pou, of Jasper, for tor be excused-and so, through him, appelappellee.

lant-on the ground that he was ignorant

whether appellee had had reasonable opportuSAYRE, J. Appellee recovered judgment nity to purchase a ticket. For the purpose against appellant for that appellant's conduc- in hand the conductor was appellant's alter tor ejected appellee from a train. Appellee ego, bound to know whatever appellant had no ticket, though he boarded the train at through its other agents knew. L. & N. R. a station where a ticket office was maintain- Co. v. Harper, supra. The general afirmaed, and was ejected because he refused to pay tive charge requested by appellant was therean excess charge of 15 cents authorized and fore well refused. required by the rules of appellant in case [6] In its motion for a new trial appelthe passenger fails to present a ticket.

lant assigned as ground, among other things, Appellee's complaint, alleging all other cir- that the damages assessed were excessive. cumstances of his case in great detail, al. This motion was filed April 16, 1923, less leged that at Parrish, the station at which than 30 days after judgment. But at that he boarded the train, he was not “afforded time no order was made as to the future an opportunity to buy a ticket,” and the date of its hearing, and without intervening ground of demurrer now insisted upon is that order it was submitted to the court and overthe allegation should have been that he was ruled May 18, 1923. By this hiatus of 30 not afforded a "reasonable opportunity."

days the court lost its power to deal with [1, 2] Appellant had the right to adopt and the motion. Ex parte Margart, 207 Ala. 604, enforce a'regulation exacting an extra charge 93 South. 505; Mt. Vernon Mills v. Judges, in case of the passenger's failure to pur- 200 Ala. 168, 75 South, 916. chase a ticket, provided it afforded the pas We find no error. senger a reasonable opportunity to purchase Affirmed. a ticket. L. & N. R. Co. v. Harper, 203 Ala. 400, 83 South. 142. Construing his complaint ANDERSON, O. J., and GARDNER and against appellee (plaintiff) on demurrer, by MILLER, JJ., concur.

For other cases see game topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes

(100 So.)

delivered f. 0. b. cars Mobile; these staves J. H. HAMLEN & SON, Inc., V. ROSEN. when shipped to be dotted with two red dots, GRANT. (1 Div. 320.)

and bundled, we paying for the expense of

bundling; the above staves to be well sea(Supreme Court of Alabama. April 24, 1924.) soned. In explanation of our telegram of yes

terday, in refernce to allowing Mr, Benton to 1. Evidence om 16-Court judicially knows

examine the staves, we had no idea that he meaning of "f. o. b. cars."

would go into a strict inspection, but now that Court judicially knows that seller's agree we have accepted your regular inspection this ment to deliver "f. o. b. cars at Mobile" means will be unnecessary. We are now awaiting a delivery on cars at Mobile without expense to reply from our New York office in reference to buyer.

the shipment of these staves, and hope to be [Ed. Notė. For other definitions, see Words able to forward them promptly.

When you and Phrases, First and Second Series, F. have further quantities of 36" or 42" white 0. B.]

oak or 42" red oak French claret staves to of

fer, please advise us. 2. Sales Em 83—Seller held under no duty to “Yours truly, ship unless buyer furnished shipping instruc.

"J. H. Hamlen & Son, tions and cars.

“[Signed] G. M. Thomas." Though ordinarily seller's agreement to de. liver "f. o. b. cars" puts burden of procuring

The complaint alleges the reduction of the cars on seller, where no time was fixed for number of staves to 50,000. delivery, but correspondence showed that seller

- Harry T. Smith & Caffey, of Mobile, for was to ship on buyer's shipping instructions, ag buyer could from time to time procure cars,

appellant. held, that seller was under no obligation to act

R. H. & R. M. Smith, of Mobile, for apuntil buyer gave instructions and procured pellee.


3. Sales 418(4),Buyer held entitled to SAYRE, J. Plaintiff, appellant, declared nominal damages only where goods have no as for a breach of contract whereby, in submarket value.

stance, defendant agreed to sell and plainWhere goods have no market value, buyer tiff to buy 50,000 claret staves at $130 per is not entitled to more than nominal damages thousand pieces, f. o. b. cars at Mobile. Of for seller's breach, burden being on buyer to these 12,000 were delivered and paid for. prove damages.

Plaintiff sought damages for a failure to de4. Sales em418(2)-In absence of shipping in- liver the rest, 38,000. Under the court's instructions from buyer, etc., seller held not in struction there was a verdict for plaintiff, default.

and its damages were assessed at 1 cent. Where shipment was to be made when buy Plaintiff appeals. er furnished shipping instructions and cars, Plaintiff did business at Portland, Me.; keld that, in absence of arrangements for cars defendant at Mobile, in this state. The parand instructions, seller could not be put in de

ties reached agreement after an interchange fault so as to fix time for measuring damages by failure to answer buyer's demand for ship- of letters and telegrams too numerous to be ment.

repeated. Plaintiff's understanding and

statement of the contract appears in its letAppeal from Circuit Court, Mobile Coun- ter of October 2, 1917. The requirement as ty; Claude A, Grayson, Judge.

to bundling the sta ves as afterwards mod

ified, and is now of no importance. Action by J. H. Hamlen & Son, Incorpo [1, 2] It will be noted that the staves were rated, against George M. Rosengrant, for to be delivered “f. o. b. cars at Mobile.” The damages for breach of contract. From a court knows judicially that the quoted stipuJudgment awarding nominal damages, plain-lation meant that the staves were to be detíft appeals. Transferred from Court of Ap- livered on cars at Mobile without expense peals under Acts 1911, p. 449, 8 6. Affirmed. to plaintiff. Sheffield Furnace Co. v. Hull

The letter of plaintiff to defendant, dated Coal & Coke Co., 101 Ala. 446, 14 South. 672. October 2, 1917, is as follows:

And, ordinarily, it may be conceded, this

stipulation puts upon the seller the burden “Portland, Maine, October 2, 1917. "Mr. G. M. Rosengrant, Mobile, Alabama- of procuring the cars in which to make shipDear Sir: We are in receipt of your two mes ment.

Elliott v. Howison, 146 Ala. 590, 40 Bages, one of September 29, and the other of South, 1018. But this obligation rests upon October 1, (see inclosed copies), and we have an implication common to all contracts in wired you this morning in answer: 'Will take the absence of express stipulation to the staves per correspondence accepting your regu- contrary. The reason for this implication is lar standard French claret inspection.' pour understand that we have definitely closed thus stated in John O'Brien Lumber Co. v. with you for 100,000 36" French White Oak Wilkinson, 117 Wis. 468, 94 N. W. 337: claret staves, of your usual inspection for "The general rule is that one who undertakes French claret' staves, but at least 70% shall be to accomplish a certain result, by necessary prime staves, and 30% good, merchantable sec- implication agrees to supply all means neces. onds, at the price of $130 per thousand pieces, sary to such result,”

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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