general statutes of the state, with a capital stock of $110,000, and called the Birmingham Mineral Land Company; that this company was organized for the purpose of becoming the purchaser of the lands under the contract above set out between plaintiff and defendant; that this defendant was so informed, and was requested by the plaintiff to make deed to said Birmingham Mineral Land Company; that the defendant, upon being notified that said Birmingham Mineral Land Company was ready to comply with the terms of purchase under said contract, made and tendered to said Birmingham Mineral Land Company a good and sufficient warranty deed to the land; that said land company declined to consummate the trade upon the advice of counsel that defendant's title to the land was clouded, and that the defendant until such cloud was removed could not make a perfect title; that before the alleged cloud upon defendant's title was removed, which was ultimately done by decree of the chancery court on proceedings instituted by the defendant for that purpose in said chancery court, the land company in November, seven months after its offer to purchase, notified the defendant that the trade was off. This is a sufficient statement of the undisputed facts for the application of the law which we think controls and determines the case.

The question of fraud or mistake does not arise in the case, and it may therefore be said, as was said in Tobin v. Bell, 61 Ala. 128: "The contract is the law controlling the rights of parties, and it is not within the province of judicial tribunals to modify or change it, to avoid hardships which may result from it." The contract here is plain and unambiguous in its terms, and calls for no construction. The stipulation calls for a "good and sufficient warranty deed," and a tender of such a deed is a compliance with the contract in this respect, to the extent of acquitting the party tendering of any default. In the case of Frank v. Riggs, 93 Ala. 254, 9 South. 360, the agreement between the parties was that the Decatur Mineral, Land & Improvement Company should execute the deed with covenant of warranty direct to the plaintiffs, etc. This court held that "the warranty deed of the Decatur Mineral, Land & Improvement Company is what the vendors agreed to give, and what the plaintiffs contracted to receive, and, this deed having been executed according to the contract, no further duty or liability rested on the vendors." In the case at bar the plaintiff had no authority to make any other contract of sale of lands for the defendant with different stipulations from those contained in the contract of February 21, 1887, and when the Birmingham Mineral Land Company became the purchaser it simply took the place of A. K. Shepard under said contract, agreeing to its terms and stipulations, and, the stipulation as to the deed being for a "good and sufficient warranty deed," this was what

the defendant contracted to give, and what the purchaser contracted to receive; and, in the language of the above case, "this deed having been executed according to the contract, no further duty or liability rested on the vendor." In Tinney v. Ashley, 15 Pick. 546, which case is cited approvingly in Tobin v. Bell, supra, the contract was to deliver the identical kind of deed; and expressed in the identical words, "a good and sufficient warranty deed," as in the contract here. The court in that case said: "The defendants agreed to give a good and sufficient warranty deed of the lots selected, and nothing more. The words 'good and sufficient' relate only to the validity of the deed to pass the title which the defendants had to the plaintiff, and do not imply that their title was valid, or that it was free from incumbrances. To guard against any defect of title, a covenant of warranty was provided for, which shows clearly that the agreement was so understood by the parties. If any authority were necessary to support so plain a construction of the contract, the case of Gazley v. Price, 16 Johns. 268, will be found full and decisive as to this point." In Babcock v. Wilson, 17 Me. 373, the contract there, as here, was expressed in the same words, to wit, "good and sufficient deed of warranty." In Bostwick v. Williams, 36 Ill. 65, it was held: "It is not essential to performance of a covenant by the vendor to convey by a good and sufficient deed of general warranty that his wife should join in the deed, and release her right of dower. If he tenders a deed, executedby himself alone, containing covenants stipulated for, that is performance of his agreement." What was said by this court in Cullum v. Bank, 4 Ala. 22, about the right to a good title arising from the law, and not from the contract, was with reference "to the rights of a purchaser when he has made no stipulations with respect to the title." Paragraph 2, p. 29, of opinion. On page 28, same opinion, it was said: "Our intention is to show what are the prima facie intendments springing out of contracts for the purchase of land, where there are no stipulations between the parties with reference to the title." (The italics are ours.) It cannot be maintained that a purchaser makes no stipulation as to title when he contracts for the tender of "a good and sufficient warranty deed," and agrees to make the first payment when such a deed is tendered.

On the undisputed evidence, it is clear that the failure to carry out the contract of sale was not by reason of any default on the part of the defendant in its performance; and as the plaintiff's right to commissions, in the absence of any default on the part of the defendant in the performance of the contract, was dependent upon payments made by the purchaser, and no such payments having been made, it follows that no right to claim commissions accrued to the plaintiff, and necessarily he is without a

cause of action. This case was tried by the court below without the intervention of a jury, and, under our view of the law as applied to the undisputed facts in the case, judgment should have been rendered in favor of the defendant. The conclusion we have reached upon the law, as stated above, renders it unnecessary to consider other questions raised by the numerous assignments of error relating to the rulings of the court on defendant's demurrers to the complaint, and upon rulings on the admission and rejection of evidence. The judgment of the city court must be reversed, and a judgment will be here rendered in favor of defendant.

MCCLELLAN, C. J., and HARALSON, J., dissenting.

(125 Ala. 603)

ALABAMA LUMBER CO. et al. v. KEEL. (Supreme Court of Alabama. April 19, 1900.) WATERS AND WATER COURSES RIPARIAN RIGHTS-FLOATING TIMBER-BOOMS - JAM NEGLIGENCE LIABILITY INSTRUCTION EXTRAORDINARY FLOODS COALESCING CAUSE TRIAL REFUSAL OF REQUESTS — REASONABLE USE OF STREAM - QUESTION FOR JURY-EVIDENCE-SIMILAR DAMAGE. 1. Where a lumber company by floating large masses of timber into its boom created such a jam therein, and up the river, adjacent to lands of another, that the water was thrown on such lands, it was liable for damage caused thereby, though the boom was rightfully and properly constructed, and care and diligence were used to prevent the jam from forming and to relieve it thereafter, since to float such masses of timber into the boom as to create the jam constituted negligence, which was only accentuated by the efforts to prevent and relieve it.

2. Where a lumber company negligently floated large masses of timber into its boom, cre ating a jam, and water was thrown on land of another, it was not error, in a claim for damages caused thereby, where heavy floods were shown, to refuse a charge that no recovery could be had if the injury was caused by extraordinary floods, since such negligent acts might have so coalesced with the floods as to create a liability, and the charge was misleading.

3. A charge was properly refused, where covered by another charge given at the instance of the same party.

4. Where negligence was alleged in floating and booming such large masses of timber that a jam resulted, and land was caused to be flooded and damaged, it was not error to refuse a charge that under the evidence the amount of timber floated and boomed was not an unreasonable use of the stream, since such question was for the jury.

5. Where damages were claimed for injuries to land from waters thrown thereon by a jam of timber floated and boomed in a stream adjacent thereto, it was not error to exclude testimony as to similar damage to other tracts of land differently located with respect to such jam and boom.

Appeal from circuit court, Jefferson county; J. A. Bilbro, Judge.

Action by Moses B. Keel against the Alabama Lumber Company and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

This action was brought by the appellee, Moses B. Keel, a riparian proprietor, against

the appellants, to recover damages for injuries to his lands, alleged to have resulted from the negligence of the defendant in floating timbers in Paint Rock river. The complaint, as amended, charged that the defendants, by placing large quantities of timber into and along the banks of Paint Rock river, negligently and wrongfully taxed the capacity of the Paint Rock river to float the timbers, and, upon such timbers being caught by the boom which was stretched across the river below the plaintiff's property, there was a jam or drift caused, which forced the water out of its natural channel and caused it to flow over the plaintiff's lands, washing the soil from the surface thereof, destroying the fences of the plaintiff, and causing other serious damage. The cause was tried upon the plea of the general issue, and upon special pleas which set up that the defendants were using the Paint Rock river in a proper and legal way, for the purpose of floating timbers at the time mentioned in the complaint. It was admitted on the trial that Paint Rock river was a navigable stream for the purpose of floating timbers. It was shown that said river was a long, narrow stream, 125 to 180 feet in depth at the ordinary stage of the water; that the plaintiff owned a plantation along the banks of said stream; that a short distance below the plaintiff's plantation there was constructed what was known as a "cross boom," which was formed by pieces of hewn lumber being coupled together by chains, and tied clear across the stream, for the purpose of catching the logs and other timbers as they floated down the stream. It was shown that the defendants were engaged in the lumber business at Paint Rock station, a short distance below the cross boom, and that their method of getting timber for their mills was by floating logs down Paint Rock river. The cross boom just below the plaintiff's property had been constructed and was in use for a number of years. It was shown that the defendants would cut the timber from the forests adjoining the stream in the summer and fall of the year, and place the timber so cut upon the edges of the stream and near thereto, and that in the winter and spring, during the freshets, the stream would rise and enable the timbers so cut and placed near the banks to be floated down the stream; that the cross boom would catch the timber, and that the defendant's employés would, by the opening of such boom, let the timbers pass through and be floated down to the mills of the defendants, where they would be caught in the mill or pocket boom, and there taken from the water and sawed into lumber. The evidence for the plaintiff tended to show that during the winters of 1898 and 1899 the defendants placed such a great quantity of timbers along Paint Rock river that when the freshets came and the tides rose there was caused a jam of timbers, extending from the cross boom on up to and beyond

the plaintiff's lands; that this jam continued for a long time, the freshets being unprecedented during the winters referred to; that as the result of the jam the water was forced out of its natural channel, and created a current which carried some of the timbers floated down the stream from the plaintiff's property; that during this time the water was over the plaintiff's lands from 2 to 10 feet in depth; and as the result the plaintiff's soil was cut away from his lands, his fences were washed away, and his property otherwise seriously injured. The evidence for the defendants tended to show that the cross boom was constructed so that it would float upon the water, and that the boom would rise and fall with the stream; and that as a consequence the existence of the boom would not increase the water, and the quantity of timber in the boom would not materially affect the level of the water in the drift. It was further shown that in times of high water, such as was shown by the plaintiff's evidence, when the lands were submerged and washed, it was impossible to open the boom and let the logs through, on down to the defendants' mills; that during the time complained of the defendants, through their agents and employés, did all in their power to prevent the jam from being formed, but that on account of the unusual freshets they were unable to prevent it. It was further shown by the evidence for the defendants that the lands of the plaintiff were very low, and that he had caused a great deal of the timber bordering on Paint Rock river to be cut from the land, which made it very much more likely to be overflowed and subject to being washed thereby. Upon the introduction of one Wiley Hill as a witness for the defendants, and after he testified that he owned and operated a farm about a mile and a half from the cross boom, and that his banks were about as high as the plaintiff's, the defendants asked the witness the following question: "State whether your lands were washed, and, if so, the character and extent of the wash" (during the time referred to in the plaintiff's evidence). The plaintiff objected to this question on the ground that it was immaterial and irrelevant testimony. The court sustained the objection, and defendants excepted. The defendants requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: "(1) If the jury believe the evidence, they will find for the defendants. (2) If the defendants exercised reasonable care to prevent the formation of jams, or to remove them when formed, then they were not guilty of obstructing the stream so as to render them liable to damages in this suit. (3) If the plaintiff's land was damaged by extraordinary floods, then the jury will find for the defendants. (4) If the defendants exercised reasonable care to prevent or remove jams, and to remove the timber from the

boom, then the plaintiff cannot recover in this action. (5) If the plaintiff was injured by reason of an unusual flood, which defendants could not reasonably have anticipated, and by the exercise of ordinary care have prevented, the plaintiff cannot recover. (6) Under the evidence in this case, the court charges the jury that it was not negligence, or an unreasonable use of the stream, to catch the logs in a boom. (7) Under the evidence, the court charges the jury that the amount of timber floated and boomed in this case was not an unreasonable use of the stream. (8) If it was reasonably necessary to catch logs against a boom, and thus form a drift during times of high water, the formation of a drift against the booms would not of itself be wrongful, or give plaintiff any right of action. (9) The law does not limit the amount of timber that may be floated down the stream, if reasonable care was used in floating and booming the timber." There were verdict and judgment for the plaintiff, assessing his damages at $400. The defendants appeal, and assign as error the several rulings of the court to which excep tions were reserved.

Martin & Bouldin, for appellants. J. E. Brown, for appellee.

MCCLELLAN, C. J. If the facts are as deposed to by the plaintiff and his witnesses; if the defendants floated such masses of timber into the boom as to create a jam in the boom and up the river along plaintiff's land, covering the surface of the stream and rising above the surface for several feet, and, of course, in consequence, extending much below the surface (even, it is inferable, to the bed of the stream, in places), and thereby the water was raised and thrown out upon plaintiff's land to his damage, or, whether raised or not, higher than it would have been in the absence of the jam; if the current, by reason of the timbers, was diverted from the channel and made to run across plaintiff's land, carrying away his fences and cutting away the soil of his land,-the defendants are liable in damages to him, though they had a right to construct and use the cross boom, though it was properly constructed, and though they used all care and diligence to prevent the formation of the jam as the timbers came into the boom, and to relieve the jam after it had been formed. On this state of case, their wrong and negligence consist in floating logs and timbers down the river to the boom in such numbers and masses as that the jam and consequent damming up of the stream so as to raise the water and throw it upon plaintiff's land, or to divert its current across the same, was inevitable; and their unavailing efforts to prevent the jam and to relieve it serve but to accentuate or make clearer their fault in having thus overtaxed the capacity of the stream and their own resources. 4 Am. & Eng. Enc. Law, p.

711 et seq; Gould, Waters, § 103; Booming Co. v. Jarvis, 30 Mich. 308; Cotton v. Boom Co., 19 Minn. 497 (Gil. 429); Booming Co. v. Nelson, 45 Mich. 578, 8 N. W. 587, 909; Anderson v. Boom Co., 61 Mich. 489, 28 N. W. 518; Haines v. Welch, 14 Or. 319, 12 Pac. 502; Hackstack v. Improvement Co., 66 Wis. 439, 29 N. W. 240; McKenzie v. Boom Co., 29 Minn. 288, 13 N. W. 123; Weaver v. Same, 28 Minn. 534, 11 N. W. 114. This is the view taken by the trial court, as indicated in its rulings upon charges requested by the defendants. Of the instructions refused to them, all but three would have required a verdict for defendants though the jury might be satisfied that they were at fault in unreasonably overtaxing the stream in the floating of timbers, and that such fault caused the injuries complained of. Of the rest, charge 1 was the general affirmative charge, and was, of course, properly refused. The injuries to plaintiff might, in a sense, have been caused by the extraordinary flood stage of the river, and yet the wrong of defendants might have so coalesced with that cause as to render them liable. Charge 3 was therefore misleading and properly refused. Charge 6 refused to defendants is covered by the first given charge at their instance. It was for the jury to say whether "the amount of timber floated and boomed in this case was an unreasonable use of the stream." Charge 7 would have taken this issue from them.

The court was right in declining to go into inquiries as to whether various other tracts of land, belonging to divers persons, and located some above the jam and others below the boom, but none having the same relation to either as the land of the defendant, "were washed, and, if so, the character and extent of the wash." This line of inquiry would have opened up an unlimited number of issues collateral to the issue in this case, and the solution of which could have shed only a very dim and uncertain and confusing ray of light on the question before the jury. Affirmed.

(42 Fla. 260)

KING v. STATE.

(Supreme Court of Florida. May 22, 1900.)

ESCAPE INDICTMENT-SUFFICIENCY. 1. Section 2591, Rev. St., providing that whoever aids or assists a prisoner in escaping, or attempting to escape, from an officer or person who has the lawful custody of such prisoner, shall be punished, etc., does not so describe the offense intended to be created as to come within the rule that an indictment or information following the language of a statute without further expansion will be sufficient.

2. An essential of the crime created by section 2591, Rev. St., is that aid and assistance to escape, or attempt to escape, must be given to a prisoner in lawful custody, and, under section 2892, an allegation that the prisoner was at the time of being assisted to escape held in lawful custody of a known public officer authorized to have such custody will be sufficient. (Syllabus by the Court.)

MABRY, J. An information was filed in the criminal court of record for Duval county against plaintiff in error and five others, charging them in separate counts with obstructing an officer in the lawful execution of a legal duty, and in aiding and assisting a prisoner to escape. A motion to quash and a demurrer to the separate counts were overruled, and, after severance, plaintiff in error was tried, and a conviction obtained under the second count.

A motion for new trial was overruled, but this ruling is not assigned as error, there being no bill of exceptions or charges of the court in the record.

The second count of the information, omitting formal beginning, is as follows, viz. That "M. B. King, Richard Edwards, Charles Williams, Willis Wilson, R. W. Williams, and John R. Williams, of the county and state aforesaid, on the 26th day of June, A. D. 1899, in the county and state aforesaid, then and there well knowing that one Richard Mitchell was then and there a deputy sheriff of Duval county, Florida, legally authorized to apprehend persons committing a breach of the peace, did then and there knowingly and willfully aid and assist one Mose Robertson, who had then and there committed a breach of the peace, and who was then and there a prisoner under arrest, and in the legal custody of the said Richard Mitchell, to escape from the custody and control of the said Richard Mitchell by then and there pushing, shoving, jostling, and mashing the said Richard Mitchell, and breaking his hold on the said Mose Robertson, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Florida."

The grounds of attack on the information are: (1) No criminal offense is issuably stated against the defendant.

(2) Issuable averments are not made from which it is made to appear that the alleged deputy sheriff was then and there authorized to arrest and convey to prison the said Mose Robertson, nor that said deputy sheriff was then and there in the execution of legal process, or the lawful execution of a legal duty.

(3) It is not made to appear that said Mose Robertson was then and there a prisoner in the legal custody of the said Mitchell.

(4) It is not made to appear from the issuable facts set up that the said deputy sheriff was then and there in the discharge of any duty imposed upon him by law in reference to said Mose Robertson.

(5) It is not made to appear that said Mose Robertson was then and there committing a

breach of the peace when he was so arrested by the said deputy sheriff, nor that the latter had or exhibited any warrant authorizing him to arrest the said Mose Robertson for a breach of the peace theretofore or then committed.

The errors assigned are: (1) The court below erred in denying the motion to quash the information.

(2) The court below erred in overruling the demurrer to the information.

(3) The verdict of the jury was insufficient to support the judgment rendered against the defendant below.

(4) The court should have discharged the defendant upon the verdict rendered.

should innocently give him a ride, or if a person should innocently receive him into his house, and thus enable him to elude the fresh pursuit of the officer, such person would, within the literal terms of the statute, aid the prisoner in escaping. But it cannot be presumed that the legislature intended to subject such persons to its penalty, and thus punish them for innocent acts done without any criminal intent." According to Mr. Bishop, an indictment or information for this offense should set out the custody of one as prisoner, and its lawfulness, the defendant's knowledge thereof, the acts of assistance or rescue, and, if on a statute, its terms must be covered. 2 Bish. Cr. Proc.

The last ground assigned is too general to demand attention by the court.

We discover nothing in the verdict that will sustain the assignments numbered 3 and 4. The record shows that a severance was had as to plaintiff in error, and he alone was put on trial before the jury that rendered the verdict. It reads as follows: "We, the jury, find the defendant guilty in the second count, as charged in the information. R. L. Gardner, Foreman." Counsel have not pointed out any defects in the form of this verdict, and there is nothing apparent to us radically defective about it.

Counsel state in their brief that the second count of the information was sustained under section 2591 of the Revised Statutes, reading as follows: "Whoever aids or assists a prisoner in escaping, or attempting to escape, from an officer, or person who has the lawful custody of such prisoner, shall be punished by imprisonment in the state prison not exceeding one year, or by fine not exceeding five hundred dollars." This statute does not so describe the offense intended to be created as to come within the rule that an indictment or information following substantially its language without further expansion will be sufficient. Com. v. Filburn, 119 Mass. 297; State v. Lawrence, 43 Kan. 125, 23 Pac. 157; Vaughan v. State, 9 Tex. App. 563. A person may in several ways aid a prisoner to escape from a lawful custody without knowledge of the fact, and, though coming within the strict letter of the statute, would not be within its spirit and meaning. Thus it was said in Com. v. Filburn, construing a statute identical with ours: "The language used does not ex vi termini describe all the ingredients of the offense intended to be punished with the certainty required in criminal pleading. An indictment, therefore, under it must allege all the facts necessary to bring the case within the intent and meaning of the statute. the literal construction of the statute any person who should do any act, however innocent, the effect of which was to aid a prisoner in escaping, would be subject to its penalty. For instance, if a prisoner should escape, and a person driving in the street

By

ent case could have been greatly improved in its allegations, but under a statute hereinafter referred to we are of the opinion that it is sufficient.

It is alleged that the accused knew that one Richard Mitchell was then and there deputy sheriff of Duval county, and legally authorized to apprehend persons committing a breach of the peace. It may be that all persons are bound to know the official character of public officers, but, aside from this, the information alleges that the accused well knew the official character of Mitchell, It may be conceded that there is no sufficient allegation-as was doubtless intended by the pleader-that Mose Robertson, the person alleged to be assisted to escape, had committed a breach of the peace in the presence of Mitchell, and was then arrested and a prisoner for such offense. But it is distinctly alleged that the accused knowingly and willfully aided Mose Robertson, who was then and there a prisoner under arrest, and in the legal custody of the said Mitchell, to escape from the custody and control of the said Mitchell; and the character of the aid and assistance is fully and sufficiently stated. Some decisions intimate that, where the acts of assistance consist of direct assaults upon a public officer, it will suffice to show knowledge on the part of the accused. Com. v. Filburn and State v. Lawrence, supra. Without approving this intimation as being correct, where nothing is shown as to knowledge except direct assaults upon the officer, it is apparent that the present information alleges more. It alleges knowledge of the official character of Mitchell, and also that the accused knowingly and willfully did aid and assist Robertson, then a prisoner, and in the legal custody of Mitchell, to escape from such custody and control.

The question of the greatest difficulty is the allegation as to the custody of the person alleged to be assisted to escape. One of the essentials of the crime created by the statute is that aid and assistance to escape, or attempt to escape, must be given to a prisoner in lawful custody. We could not hold that one can commit the crime defined by the statute by merely aiding or assisting