proper to refuse a charge on the requisites of an executed contract. [Ed. Note. For other cases, see Logs and Logging, Cent. Dig. § 12; Dec. Dig. § 3.*] Appeal from Circuit Court, Monroe County; John T. Lackland, Judge. Action by Self Bros. against J. R. Dees. From a judgment for plaintiffs, defendant appeals. Affirmed. There was no error in sustaining the objec tion, by the plaintiffs, to the question to the defendant, as a witness, "How much were you getting for cutting and hauling this timber?" The defendant had denied making the purchase on his own account, and had stated that he was merely cutting and hauling the timber for the Limestone Lumber Company. It was immaterial to the issues in this case what he was being paid for that service. The only counts in the complaint are on an account, for money loaned, account stated, for merchandise, goods and chattels, sold by plaintiffs to defendant, for money paid by plaintiffs for the defendant at his request, and for work and labor done. There is no proof tending to sustain either one of the counts, unless it be the first. An "account" is a general term which covers any item of indebtedness, by contract, express or implied. 1 Cyc. 362; 1 Am. & Eng. Ency. Law, 434, and notes; 1 Words & Phrases, 87; Cave, Use of Wallace, v. Burns, 6 Ala. 780; Morri The bill of exceptions shows that the evidence tended to show that plaintiffs sold the defendant individually in June or July, 1907, all the pine timber standing and growing on a certain 120 acres of land in Monroe county at and for the price of $2.50 per 1,000 feet, said timber to be cut and removed as early as possible; that the defendant had cut and removed from said land between 118,000 and 120,000 feet, on which plaintiffs had received a payment of $65.17, which payment was made by the Limestone Lumber Company; that there was a balance of $225 due, with interest thereon; and that the agreement is not in writing. The evidence for the defendant tend-sette, Extr., v. Wood, 128 Ala. 505, 507, 508, ed to show that the sale was made to him for the Limestone Lumber Company, and that after the sale was made, under the direction of the Limestone Lumber Company, plaintiffs pointed out the lines to the defendant, and the defendant began cutting and hauling the timber; that defendant cut and hauled about 30 days, when plaintiffs stopped him, and said they were afraid that the lumber company would not pay them, and that they went to see the lumber company, and in a few days told defendant to go ahead with the cutting, and that defendant cut 15 or 20 days more, when the lumber company failed, and he had not cut any more for them. The objections to evidence are sufficiently stated in the opinion of the court. The following charges were refused to the defendant: "(1) The court charges the jury that an executed contract is one that is completed, and where nothing remains to be done by either party to the contract. (2) The court charges the jury that an executory contract is one where something remains to be done, such as determining the price, quantity, or identity of the thing sold." (3) The affirmative charge found for the defendant. Barnett & Bugg, for appellant. McCorvey & Hare, for appellees. 30 South. 630. The first count, then, covers the indebtedness shown by the evidence of the plaintiffs, unless it is subject to the objec tion raised by the appellant, to wit, that a recovery cannot be had on the common count, because the evidence shows a special parol contract, which should have been specially declared on, unless it had been fully executed, so that nothing remained save the obligation of defendant to pay the money. It is frequently laid down as a principle that where two parties have entered into a contract which is entire, and one has performed a part of what he agreed to do, he cannot recover on the common counts, but must declare on the contract, and rely upon his rights under it. It is also a principle that when the contract has been performed on one side, and nothing remains to be done but the payment of the money, a recovery may be had on the common counts. It is also true that if the party suing has partly performed the contract, and the other party has accepted the results of his work, he can recover the value of the same, on the common counts, except in such cases where the acceptance of the work was unavoidable. Florence Gas, Electric Light & P. Co. v. Hanby, 101 Ala. 17, 32, 13 South. 343; Woodrow v. Hawving, 105 Ala. 241, 245, 16 South. 720; Stafford v. Sibley, 106 Ala. 189, 191, 17 South. 324; Henderson-Boyd Lumber Co. v. Cook, 149 Ala. 227, 231, 232, 42 South. 838; Bell v. Teggue, 85 Ala. 211, 215, 3 South. 861; Martin v. Massie, 127 Ala. 504, 29 South. 31. In the SIMPSON, J. This action was brought by the appellees against the appellant to recover for certain pine timber which, it is claimed, was sold to the defendant and received by him. The evidence of the plaintiffs tended to show that the timber was sold to the de-last-cited case, the court held that a person, fendant individually, by a verbal contract, at so much per thousand feet, and that he got a certain amount; the evidence being that defendant bought all of the pine timber on a certain piece of land, but not showing whether what he got was all of said timber or not. after partly performing and abandoning an entire contract (there being no proof of voluntary acceptance), could not recover either on the contract or on common counts. The deci sions generally, on this subject, relate to labor or construction contracts. EXCLUSION OF EVIDENCE FROM JURY-NECESSITY OF PREVIOUS OBJECTION. It will be noticed that, in the present case, | 3. TRIAL (§ 91*) the party who is raising the question is not one for whom work has been done in partial performance of a contract, but the party himself who agreed to purchase all the timber, who has gotten a part of the timber, and of course gotten the benefit of it; and he says that he should not be made liable in this form of action for the timber which he has actual. ly gotten, because he has not availed himself of his privileges under the contract by taking it all. There is no proof that the contract was entire, and that he was not to pay for any until he had gotten it all. There is no proof that the other party had in any way prevented him from getting all of the timber. In fact, so far as the evidence shows, we do not see any field of operation for the principle invoked to this character of contract. There being nothing said about the time when the timber was to be paid for, the natural interpretation would be that it was to be paid for as taken, and, as to each lot taken, the contract was performed by the seller, and nothing remained but for the buyer to pay the money, and a recovery could be had under the common counts. Veerkamp v. Hurlburd C. & O. Co., 58 Cal. 229, 41 Am. Rep. 265. It results that there was no error in the refusal to allow proof as to how much timber was left standing, nor in the refusal to give the charges on the requisites of an executed contract, nor in the refusal to give the general charge in favor of the defendant. The judgment of the court is affirmed. Affirmed. The exclusion from the jury, on motion, of testimony improperly admitted is not error, though movant did not object to the questions eliciting the testimony. Dig. §§ 242-244; Dec. Dig. § 91.*] [Ed. Note.-For other cases, see Trial, Cent. 4. MASTER AND SERVANT (§ 270*)—INJURIES [Ed. Note.-For other cases, see Master and The exclusion of a question was not prejudicial where the witness later testified as to the fact sought to be elicited by the question. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4200, 4201; Dec. Dig. § 1058.*] 6. MASTER AND SERVANT (§ 270*)-INJURIES TO SERVANT - EVIDENCE KNOWLEDGE BY MASTER OF DEFECT. In a servant's action for injuries through a defective lever on an engine, testimony of a witness as to his failure to report to the master the action of the engine, in respect to the lever, when operated by him, was properly rejected, it not appearing that such was his duty. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 923; Dec. Dig. § 270.*] 7. APPEAL AND ERROR (§ 1058*)-HARMLESS ERROR-EXCLUSION OF EVIDENCE. The exclusion of testimony covered by other testimony is not prejudicial. [Ed. Note. For other cases, see Appeal and DOWDELL, C. J., and MCCLELLAN and Error, Cent. Dig. §§ 4200, 4201; Dec. Dig. § MAYFIELD, JJ., concur. (165 Ala. 537) ALABAMA GREAT SOUTHERN R. CO. v. YOUNT. (Supreme Court of Alabama. Feb. 10, 1910.) 1. MASTER AND SERVANT (§ 265*)-INJURIES TO SERVANT-DEFECTIVE APPLIANCES-BURDEN OF PROOF. In a servant's action for injuries through defective appliances, plaintiff has the burden of sustaining the essential averment that the defect arose from or was not discovered or remedied owing to the negligence of defendant or of some person for whom he was responsible. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 894-905; Dec. Dig. § 265.*] 2. MASTER AND SERVANT (§ 286*)-INJURIES ΤΟ SERVANT DEFECTIVE APPLIANCES QUESTIONS FOR JURY. In a servant's action for injuries, where there was evidence from which it might have been inferred that notches on the quadrant of defendant's engine were worn from use, whether the defect had existed for such time that defendant was negligent in failing to discover it was for the jury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1030; Dec. Dig. § 286.*] 1058.*] 8. WITNESSES (§ 248*)—ANSWER TO QUESTION -RESPONSIVENESS. An answer not responsive to the question is properly excluded. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 861-863; Dec. Dig. § 248.*] 9. WITNESSES (§ 236*) - QUESTION CALLING FOR SPECULATIVE ANSWER. A question inviting a purely speculative answer is properly disallowed. [Ed. Note. For other cases, see Witnesses, Cent. Dig. § 825; Dec. Dig. § 236.*] 10. WITNESSES (§ 374*) - BIAS-STATEMENTS BY WITNESS. A question asked defendant's witness as to whether he told plaintiff's witness that the latter's testimony would cost him five years was admissible as tending to show bias or interest in the cause. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 1202; Dec. Dig. § 374.*] 11. MASTER AND SERVANT (§ 293*)-INJURIES TO SERVANT-INSTRUCTIONS. In a servant's action for injuries through a defective machine lever, a charge denying the right to find from the evidence that defendant, or some person for whose fault it was responsible within the liability act (Code 1907, § 3910), was negligent in respect of remedying the defect if it was discovered was properly refused. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1148: Dec. Dig. § 293.*] •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 12. MASTER AND SERVANT (§ 125*)—INJURIES | whether or not it is dangerous for an enTO SERVANT-KNOWLEDGE BY MASTER OF gineer to sit with his feet on the quadrant DEFECTS-REASONABLE BELIEF IN FITNESS in front of a reversed lever." (20) Appellant OF APPLIANCES. In a servant's action for injuries through objected to the following question, propounda defective machine lever, a charge avoiding ed to appellant's witness Fleming by the apthe imputation of negligence by reasonable bepellee: "Mr. Fleming, yesterday did you lief of careful, prudent servants of the fitness of the engine for service was properly refused, tell Mr. Hammond that his testimony on the reasonable or honest belief not being a factor in stand would cost him five years?" the ascertainment vel non of negligence. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 243; Dec. Dig. § 125.*] 13. TRIAL (8 194*) - INSTRUCTION-INVADING PROVINCE OF JURY. The refusal of a charge declaring there is no evidence of a fact stated in the instruction is not error. [Ed. Note.-For other cases, see Trial, Cent. Dig. 454; Dec. Dig. § 194.*] The following charges were refused to the defendant: (9) "By the terms of the issues involved in this case, which are to be passed upon by the jury, it is not shown that the defendant had any knowledge of any deficiency in the engine, and the question was confined to the inquiry as to whether or not the defendant was negligent in not using the proper diligence and respect thereto, and Appeal from Circuit Court, Jefferson Coun- that for the want of diligence, or by reason ty; A. O. Lane, Judge. Action by J. B. Yount against the Alabama Great Southern Railroad Company for damages for personal injury. Judgment for plaintiff, and defendant appeals. Affirmed. The facts sufficiently appear in the opinion of the court. Assignments of error 6, 7, 8, 9, and 10 relate to objections sustained by the court to questions propounded by appellant to its witness P. I. Morgan, and contained in the assignment, as follows: (6) "Now, I will ask you whether or not these notches here on the quadrant were much worn anywhere on that quadrant." (7) "I will ask you whether or not, in your opinion, that quadrant and that latch were in good safe condition." (8) "I will ask you whether or not that quadrant and that latch are in good condition." (9) "I will ask you what condition you found the quadrant and latch in on that occasion." The witness answered, tent men, and that these competent and care of such diligence, they were not informed of the defects in the engine, if any there was. The question involved is one of diligence, or not, and the defendant can be charged with it all only on the ground that his own negligence or want of diligence, and such must appear, in order to hold the defendant in this case, and the burden of proof is on the plaintiff to show such proper want of diligence." (11) "If the jury believe from the evidence that the defendant, through its servants or agents who had charge of the repairs on engine 198, were careful and compeful men reasonably believed that said engine was safe and fit for running with safety and security upon defendant's road in defendant's business, and it was allowed to so run, and that after that the accident and injury occurred, without any knowledge to the defendant or to the men, competent and care"In first-class condition," and the court ruled ful, who had charge of the repairs on said engine, by reason of some defect in the enout the answer. (10) "State to the jury whether you found it in the same condition gine, or the neglect of some mechanic of the as it is now." The witness answered, "Yes, company, the defendant cannot be held resir," and the court ruled out the answer. As-Sponsible for the injury to the plaintiff." signments 11 and 12 relate to objections sustained to questions propounded by appellant to his witness Fleming, and were similar to assignments 9 and 10. Assignment 13 relates to a question to an answer by the same witness, as follows: "I will ask you whether or not it is frequently the case that the lever will get away from an engineer, or will jump out of the notch in running an engine." Answer: "In my personal experience, I have had a good many to get away from me." 14 and 15 are questions to the same witness, and are as follows: (14) "I will ask you whether or not, when a lever jumps out or flies out, it is the fault of the engine or the engineer who is running it." (15) "I will ask you whether or not, under ordinary conditions, when an engine is in good condition and running on the road, and the lever flies out, is it the fault of the engineer who is running the engine." (16) "I will ask you A. G. & E. D. Smith, for appellant. Frank S. White & Sons, for appellee. MCCLELLAN, J. The case went to the jury on the third count, alone, and on pleas 1, 2, and 3 as amended. This count declared on negligence in respect of the way, works, machinery, etc., in the usual form, the particular aspect being that the notches in the quadrant, designed to hold the latch in place, were worn. The injuring agency, and that without dispute, was the flying out of the reverse lever of a locomotive, crushing, etc., plaintiff's foot, he being then the engineer in control of the engine. The reverse lever controls the forward or backward motion of the engine. It works in practically a semicircle over what is called, mechanically, a quadrant. The retention of this lever at a given point on the quadrant is effected by means of a latch," which is pressed by a spring against the quadrant and into notches there by evincing a speculation, whether favorable in. Pleas 2 and 3 as amended set up this as contributory negligence of the plaintiff: That he negligently placed his foot in such position as to be in the way of injury by the flying out of the reverse lever. Again, in the latter plea, that he negligently operated the engine in this: Improperly fastened the "latch" in the quadrant, or negligently ran the engine with dry (unoiled) valves. All of the errors assigned and argued here relate to rulings in respect to evidence and to special instructions refused to defendant (appellant). On this record, it is clear that defect vel non, as described in count 3, was a jury question. It is likewise clear that contributory negligence vel non, as charged in pleas 2 and 3 as amended, were matters for the jury's decision. There were tendencies in the evidence to support the respective averments of the pleadings in the particulars just stated. or unfavorable, on the answer of the witness. The rule invoked for appellant has no field of operation where the court, on motion whenever made, excludes evidence previously improperly admitted. The rule's purpose is directed against one who is asserting error because of the failure of the court to exclude evidence given in response to a question to which appellant had not seasonably objected. The inquiry here then, is whether the evidence excluded on plaintiff's motion was inadmissible, and, if so, no errors, in that regard, to appellant's prejudice were committed. The first assignment assails the action of the court in refusing to exclude the testimony of Hammond, plaintiff's witness, wherein he testified that he operated engine 198 about July 16, 1907, the date of the injury here complained of, and that the reverse lever flew out on one occasion when he was operating the engine. On the cross, he said Appellant insists that the affirmative char- that flying out of the lever, referred to by ges that concluding generally and that di- him, was "about 6 or 10 days after the accirected to a finding on the third count-re- dent in which plaintiff was injured." We quested for it, should have been given. The think this matter was properly retained for chief and only debatable ground for this in- the jury's consideration. Jones on Evidence sistence is that there was no evidence tend- (2d Ed.) §§ 139, 156, 167, and notes. Its iming to support the essential averment, to sus mediate tendency, though of course its probatain which, the plaintiff, in such actions as tive force was for the jury to determine, this, always has the burden, that the defect was to show the alleged defective condition described arose from, or had not been dis- of the quadrant. The similarity between the covered or remedied, owing to the negligence described action of the lever when Hamof the master or of some person for whose mond, within 6 or 10 days, was operating derelictions the master is responsible. There the engine, and its action when plaintiff was was evidence from which it might have been injured thereby, was a circumstance tending, inferred that the notches on the quadrant if credited, to show the defective condition were "worn" from use. There was, of course, of the quadrant on the latterly mentioned foundation in the evidence justifying a con- occasion. Whether like conditions, in retrary inference, as well as tending to show spect of load on the locomotive, or oil in the that no defective conditions existed at all. valves, or the general operation of the locoGiven the first stated inference, it was, in motive, prevailed when each man was opconsequence, likewise open to the jury to erating the engine was matter for the crossfind that the alleged defect, produced by examination to develop. In this connection wearing from use, had existed for such time counsel insist that if this evidence of Hamas the failure to discern it, as might have mond was properly retained in the case, then been done by reasonably diligent care and in- the testimony of J. M. McCarty, defendant's spection, constituted such want of care, in witness, wherein he was, on objection of the premises, as the statute prescribes. This plaintiff, not allowed to answer this question court ruled, upon a like matter, in Birming- propounded by defendant: "Did you have ham Rolling Mill Co. v. Rockhold, 143 Ala. | any trouble with the quadrant latch?" If it 115, 126, 42 South. 96, and held that the question was for the jury. The affirmative charges mentioned were properly refused. is assumed that like reason to that rendering proper the overruling of defendant's motion to exclude Hammond's testimony, as stated before, required the allowance of the question to McCarty, just quoted, the bill, by recital, takes the point out of the assignment based on the disallowance of the question. The recital is: "The witness subsequently testified that during the time he worked on engine 198 the lever did not fly out with him." The time he ran the engine was "in July, or the first of August," 1907. Another feature of the argument for appellant, applicable to several of the errors assigned, in respect of rulings in excluding evidence, may be here considered. A number of questions, propounded by defendant, to witnesses on their examination were not objected to by plaintiff. After the questions were answered, motion was made, and sustained by the court, to exclude the answers from the jury's consideration. It is insist- The questions propounded, on the cross, by ed that the court erred in these particulars defendant to Hammond, were properly disbecause plaintiff did not object to the ques- allowed. No ground of the objections there One of the questions was based on an un- [leged declarations of the witness Fleming te founded assumption of what the witness had Hammond tended to show Fleming's bias or already testified. The other questions sought interest in the cause. to elicit evidence in reference to his failure to report the action of the engine, in respect to the lever, when operated by him. There was then no evidence in the case that such was his duty, even if his conclusions in the premises were admissible for any purpose. Charge 9 denied the right to find from the evidence that the defendant, or some person for whose omission in that regard the defendant was responsible within the liability act (Code 1907, § 3910), was negligent in respect of remedying the defect if it was disAssignments 6, 7, 8, 9, and 10 relate to covered. Furthermore, the charge is not rulings disallowing questions propounded by clear. Again, it is by no means certain that defendant to its witness Morgan. What pur- the charge does not exclude the idea that ported to be, according to defendant's evi- negligence intervened in the failure to disdence, the quadrant described in the count cover the defective condition described in the was before the jury. The essence of the third count. In addition, the charge might jury's duty was to decide whether it was in have misled the jury to believe that the a defective condition when plaintiff was in- defendant, itself and alone, could be neglijured. It was the effort to show by Mor-gent in the premises, whereas it may be, of gan, an expert, that this quadrant was in course, responsible for the derelictions of "good condition," that its notches were "not those charged with duties, in the premises, much worn," that it was, on the trial, in a by defendant. "good, safe condition," that it was, on the occasion, in "first-class condition." Morgan, having testified to facts tending to show that the quadrant was as it was when plaintiff was injured, further said "that he tested the quadrant and the latch to see if they were case hardened and if they had the right radius, and to see if they were in good condition; that he found by the test that they were properly case hardened, had the right radius," etc. A careful reading of the entire testimony of this witness discloses the fact that the matters complained of in these assignments were without prejudice to defendant because fully covered by testimony of the witness admitted in evidence. The rulings assailed in assignments 11 and 12 were innocuous. The matter excluded was covered by other testimony of the wit ness. The answer of the witness Fleming, quoted in assignment 13, was not responsive to the question, and was well excluded, because illegal. The question to the witness Fleming, set out in assignments 14 and 15, obviously invited a purely speculative answer. Besides, the witness, testifying as expert, stated the conditions and causes productive of the flying out of a reverse lever on a running engine. Whether to place the feet in front of the lever on the quadrant is a dangerous thing for an engineer to do was a conclusion, and the question to that end (assignment 16) was well disallowed. That was a matter within the issues on plea 2, and it was for the jury to determine whether the act indicated was dangerous. Whether so or not was not within the legitimate field of expert opinion in this case. Assignment 17 is similar to assignments 6 to 10, and is, like them, without merit. The question quoted in assignment 20 was properly allowed, on the theory that the al Charge 11 was bad, and was well refused. Besides being involved, it would avoid the imputation of negligence by reasonable belief of careful, prudent servants, so engaged, of the fitness, etc., of the engine for service. Reasonable or honest belief is not a factor in the ascertainment vel non of negligence. L. & N. R. R. Co. v. Young, 153 Ala. 232, 237, 45 South. 238, 16 L. R. A. (N. S.) 301. It can never be error, this court has held, to refuse a charge declaring there is no evidence of a fact stated in the instruction. Tutwiler v. Burns, 49 South. 455, 458. Every assignment urged in argument has been considered. No error appears. The judgment must be affirmed Affirmed. DOWDELL, C. J., and SIMPSON, ANDERSON, MAYFIELD, and SAYRE, JJ., concur. (165 Ala. 399) WESTERN UNION TELEGRAPH CO. v. WEST. (Supreme Court of Alabama. Feb. 10, 1910.) 1. TELEGRAPHS AND TELEPHONES _(§ 67*)— DELAY IN DELIVERING MESSAGE-DAMAGES. In an action against a telegraph company for failure to deliver a message sent by plaintiff to her brother-in-law, which announced the death of her husband by stating that his brother was killed, and that he should come at once, as assistance was needed, the character of the message was such that it was proper for plaintiff to prove that she was deprived of the aid and comfort of her brother-in-law. [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. § 65; Dec. Dig. § 67.*] 2. TELEGRAPHS AND TELEPHONES (§ 67*) — FAILURE TO DELIVER MESSAGE-ACTION FOR DAMAGES EVIDENCE. It was error to permit plaintiff to show that she had two small children, and that she and the two children were deprived of the comfort of her brother-in-law, since the message did |