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was a failure on the part of the railroad com where plaintiff himself was guilty of cunpany to comply with section 5473 (3440) of tributory negligence, unless the defendant the Code.

was guilty of wanton negligence or willful The next inquiry is: Was or could it be injury; but a close examination of such casinferred by the jury that this negligence es will show that in each the negligence of proximately contributed to or caused the the plaintiff was concurrent and continuing death, or was the death the resuli of, or to the very time of the injury, and was proximately caused by, intestate's own neg- therefore the efficient and direct cause of ligence, did plaintiff's own evidence affirma- the injury, without which, it being so contively show this, or was it a mere accident tinuing and concurring, the injury would for which no one is responsible, or was the not have happened. In these cases the neg. jury authorized to infer wanton negligence ligence of the plaintiff was clearly the “cauor willful injury from this evidence, so as sa causans." Frazer's Case, 81 Ala. 185, 1 to avoid the contributory negligence of plain- South. 85, 60 Am. Rep. 145. In Tanner's tiff's intestate, if found to exist? The mere Case, 60 Ala. 621, the rule is applied, and concurrence of negligence on the part of a held to be, that the plaintiff's negligence was defendant, with injury to the plaintiff, does no defense, if the defendant could thereafter, not always make a cause of action for the by the exercise of reasonable care, have injury. The negligence of the defendant avoided injuring him. In Cook's Case, 67 must proximately contribute to the injury; Ala. 539, it is said that, where an injury is that is, but for the negligence, the injury perpetrated by a defendant either wantonly, would not have happened. The same is true recklessly, or intentionally, the defense of as to the plaintiff's negligence. The mere plaintiff's contributory negligence is thereby fact that a plaintiff was guilty of negligence overcome and vitiated; but such conduct on when he was injured by defendant's negli- the part of the defendant, says the court, is gence does not defeat his action for the in- not necessary in order to establish his liajury. To do this his negligence must have bility, though the negligence on the part of proximately contributed to his own injury. plaintiff may have co-operated to produce There is, however, a class of cases in which the damage-affirming and following Tana plaintiff will be entitled to recover for an ner's Case, and Gothard's Case, 67 Ala. 114, injury suffered when he was guilty of neg. and qualifying Hanlon's Case, 53 Ala. 70. ligence, and when, but for his negligence, the If a person voluntarily places himself in Injury would not have happened. This class an obviously dangerous position on a railroad of cases is where the negligence of the plain- track, or so near thereto as to be struck by tiff precedes that of the defendant; that is, passing trains, thereby assuming the risk, where the defendant was guilty of negli- and while there continues to use no proper gence which directly caused or proximately means of discovering the danger, or, on discontributed to the injury after the plaintiff's covering it, continues in the dangerous posinegligence, and the defendant, by the exer tion without attempting to avoid it, and, in cise of reasonable care after knowledge of consequence thereof, is struck by a passing the plaintiff's negligence, could have avoided train, he cannot recover, in the absence of the injury. This class is denominated "sub- wanton negligence or willful injury on the sequent negligence" and "last clear chance" part of the railroad company; but if, after

This same doctrine or rule also ap- discovering his peril, the result of his conplies to defeat plaintiff's right of recovery, tributory negligence, he attempts to avoid when he has the last chance to avoid the in the injury, and the railroad company is therejury and negligently fails so to do, or is after guilty of any negligence, simple or wanthereafter guilty of the last act of negli- ton, which proximately contributes to his ingence which proximately contributes to his jury, the railroad company is liable. Author. injury, which, but for his negligence, would ities, supra; Richards' Case, 100 Ala. 365, not have resulted. This doctrine or rule had 13 South. 944; Lee's Case, 92 Ala. 262, 9 its origin in England, being first announced South. 230. in the case of Davis V. Mann, 10 Mus. 7 & Except at public crossings and a few othWer. 546, in which the owner of a donkey er places, the track and right of way of a turned it out upon the streets with its feet railroad are its exclusive property, upon fettered and clogged, and a traveler on the which a stranger has no right to be, and to highway negligently drove a wagon against those who trespass thereupon it owes no duty it, and killed it.

as a rule, except not to wantonly or willfully The doctrine has since spread to the Unit- injure them. But at public crossings a difed States, and has been announced, clarified, ferent rule prevails. There the public have and amplified by most all the courts of the a right to use the public street, road, or highUnion, state and federal. It is only necessa- way, to travel along it, on foot or in vehicles, ry to state the rule or doctrine as it has been and to cross the railroad track, if necessary announced in this state and applied to in- to use the highway. The rights of the pubjuries caused at railroad crossings. Some of lic and of the railroad to use the streets or the cases in this state seem to deny the plain- highways where they are crossed or occutiff's right to recover for personal injuries pied by a railroad track are mutual and reinflicted by a railroad at a public crossing ciprocal. But, owing to the great weight,

cases.

momentum, and speed of commercial trains, , injured by a railroad at a public crossing they have the right of way at public cross- does not, without more, conclusively make the ings. They are confined to a fixed track upon railroad liable therefor. Nor does the docthe rails, and cannot turn to right or left to trine of “res ipsa loquitur” apply. If it did, avoid collisions, as can other travelers upon it would speak the negligence of the plaintiff the highway. Yet this right of precedence as as much as that of the railroad. It is true to crossings does not exempt the railroad that the statute renders the railroad liable from the duty to try to avoid collisions there for the injury if it results from a failure to at. The public and the railroad must resort comply with the statutory regulations, and to reasonable and proper efforts, considering places the burden of proof upon the railroad all the attendant circumstances in each par- to show a compliance with the statutory duticular case to avoid the injury. Each may ties imposed in such cases. But the effect of to a limited and reasonable extent rely up- the statute is to impose certain duties upon on the other to exercise reasonable and ordi- the railroad company which might not othernary care to avoid injury by collisions. The wise exist, and to place the burden of proof track itself is a warning to the public of upon the railroad to show that it discharged dangers, and travelers should inform them- these duties thus imposed by the statute. selves as to the proximity of trains before | The statute does not have the effect to render attempting to cross. They must stop. look, the railroad absolutely liable for injuries ocand listen for trains before attempting to curring at crossings, irrespective of neglicross the railroad track, unless there be some gence on its part which caused or contributed fact to excuse them of this duty. Certain du to the injury. If it did, it would clearly be ties of railroads as to public crossings are unconstitutional. Zeigler's Case, 58 Ala. often prescribed by statute and by municipal 594; Parson's Case, 100 Ala. 662, 13 South. ordinance, and some of such duties are so 602, 27 L. R. A. 263, 46 Am. St. Rep. 92; provided in this state. Code, 88 5473-5476. Hembree's Case, 85 Ala. 481, 5 South. 173; But providing these duties by statutes and Green's Oase, 73 Ala. 26; Davis v. State, 68 by ordinance does not exempt the railroad Ala. 58, 44 Am. Rep. 128; Larkin's Case, 66 from all other duties which are reasonable Ala. 87; Wilburn's Case, 63 Ala. 436. to avoid injury or collision at crossings. As a rule, the mere failure to comply with

A railroad which violates any of these du- the duties imposed by statutes and ordinanties imposed by statute or ordinance as to ces upon railroads at public crossings constipublic crossings is at least guilty of simple tutes only simple negligence. This has often negligence per se, and, if the omission is es- been declared by this court. Lee's Case, 92 tablished, such negligence arises as matter of Ala. 262, 9 South. 230; Sampson's Case, 91 law. The statute (section 5476) makes the Ala. 560, 8 South. 778; Martin's Case, 117 railroad liable for all injury to persons or Ala. 382, 23 South. 231; Orr's Case, 121 Ala. property from a failure to comply with the 489, 26 South. 35; Mitchell's Case, 134 Ala. statutory duties as to crossings, and also 266, 32 South. 735. Yet we do not think that places the burden upon the railroad to show it is impossible for the failure to comply with compliance with its statutory duties. But these duties to be so gross, reckless, and this negligence, no more than other, does not wanton as to amount to wanton misconduct. necessarily make the railroad company lia- The failure to comply with these duties, just ble for all injuries at crossings the result of like the failure to comply with other duties, collisions with its trains. This negligence of however imposed, may be so gross, reckless, failure to comply with the statutory require and wanton as to evince an absolute disre. ments, like all other negligence, in order to gard of the rights of others, and an absolute render the railroad company liable, must be indifference to the injury of persons and actionable, and must proximately contribute property; and in such cases may render the to the injury complained of. If the injury act which violates the duty wanton neglicomplained of is the result of plaintiff's neg- gence, thus making the wanton act as culpa. ligence, or if his negligence concurred with ble as if the injury had been willfully inthe simple negligence of defendant's—of fail. flicted, though there be no specific intent to ing to comply with the statute or ordinance inflict the injury, or specific knowledge or con-in producing the injury complained of, the sciousness that the particular injury would plaintiff cannot recover. These duties requir. result from the wrongful act; that is, neg. ed of railroads at crossings, by statute or ligence may be so gross and reckless as to be ordinance, are no more sacred or binding wantonness, which may render the party as than are other duties imposed by the com- guilty as if the injury were willfully inflictmon law, which have been announced by the ed. To illustrate, suppose a railroad should courts and text-writers on the subject, no pass through a populous city, and along one more sacred or binding on the railroad than of its public streets usually crowded and are the duties which the common law of this thronged with travelers, and other streets of country has enjoined upon the public in like kind crossed the street in which was crossing railroad tracks, often declared by laid the railroad track, all of which was the courts, among which is the duty to stop, known to the agents in charge of the trains, look, and listen before crossing the track. and that the railroad company should run its

such city on such street at the rate of 50, tive rights, and are under mutual obligations 60, or 70 miles per hour, and with no more at public crossings and in the use of them. precaution than it employs in running these The doctrine of sic utere tuo ut alienum non trains through the country on its own ex- lædas applies alike to persons and corporaclusive roadbed; it would therefore be im- tions. The value of human life cannot be possible to prevent accidents and injuries at overbalanced by any pecuniary or public inthese crossings, no matter how careful the terest. Our duty is simply to declare the public might be. This we think might well law.” The evidence showed that intestate be held to be such an act as to constitute was killed by a regular passenger train of wantonness, though there be no specific in- defendant's at a public street crossing in the tent to injure any particular person or prop- city of Gadsden; that the train was coming erty. It might be said to be universal malice. into Gadsden from the North at schedule Our court has frequently so decided as to in- | time, which was about 8 o'clock in the evenjury both to persons and property by rail. ing. The whistle was blown at the signal roads.

post, about a quarter of a mile from the place The following has often been announced to of the accident. The railroad track, as it ap. be the law in this state as to this proposi- proached the crossing, curved from the signal tion: “To run a train at a high rate of speed post until it reached a point about 150 or 300 and without signals of approach at a point feet from the crossing, and from that diswhere the trainmen have reason to believe tance the track was straight to the crossing. there are persons in exposed positions on the The headlight was burning, and the train was track, as over an unguarded crossing in a running 25 to 30 miles per hour. It was not populous district of a city, or where the pub- made certain whether any bell was rung or lic are wont to pass on the track with such whistle sounded or brake applied, or that the frequency and in such numbers, facts known speed was checked from the signal post un. to those in charge of the train, as that they til the train was within 20 or 30 feet of the will be held to a knowledge of the probable place where intestate was struck. The evi. consequence of maintaining great speed with dence showed that at this point the steam out warnings, so as to impute to them reck- was shut off, brake applied, alarm sounded, less indifference in respect thereto, would and bell rung; but the train was not stopped render their employer liable for injuries re- until it had passed the place of the injury sulting therefrom notwithstanding there was several hundred feet. The only evidence as negligence on the part of those injured, and to the position of the deceased was that he no fault on the part of the servants after see was seen standing by the side of the track ing the danger." Lee's Case, 92 Ala. 271, 9 just as the danger signal was given, and South. 230; Meadors' Case, 95 Ala. 137, 10 when the train was within 20 or 30 feet of South. 141; O'Shields' Case, 90 Ala. 29, 8 him. There was a boarding house on one side South. 248; Webb's Case, 97 Ala. 312, 12 of the track at this crossing and a storehouse South. 374; Martin's Case, 117 Ala. 383, 23 on the other. At the hour and place of the South. 231; Id., 131 Ala. 279, 30 South. 827; accident travel along and over the street Rice's Case, 142 Ala. 677, 38 South. 857; Id., crossing was much and frequent. The street 144 Ala. 613, 38 South. 857; Foshee's Case, had been used as a public street of the city 125 Ala. 199, 27 South. 1006. Railroad com- for a long time, and was much traveled by panies that knowingly run their trains under the public. The engineer in charge of the conditions rendering it impracticable for those locomotive which caused the accident had in charge to prevent injury to stock stray- been running on the defendant's road and ing upon their tracks are accountable for the this particular run for some time prior to the injury, except in those cases in which the in- accident. jury cannot be ascribed to the company's neg Under the evidence shown by the record in ligence. Hewitt's Case, 139 Ala. 443, 36 South. this case, we think the question of the de39, 101 Am. St. Rep. 42; Harris's Case, 98 gree of the defendant's negligence, of its reAla. 326, 13 South. 377; Davis's Case, 103 sult, and of the plaintiff's negligence should Ala. 661, 16 South. 10; Cochran's Case, 105 have been submitted to the jury under propAla. 354, 16 South. 797; Kelton's Case, 112 er instructions as to the law applicable to the Ala. 533, 21 South. 819; Stark's Case, 126 case, as in this opinion we have endeavored Ala. 367, 28 South. 411; Anchors' Case, 114 to expound it. We do not think the court Ala. 493, 22 South. 279, 62 Am. St. Rep. 116; can as matter of law say that intestate's neg. Brinkerhoff's Case, 119 Ala. 606, 24 South. ligence proximately contributed to his injury, 892.

or that it succeeded or concurred with that If this is true as to live stock, ought it not of the defendant to produce the injury; or to be, and is it not, true as to injuries to per- that the evidence did not tend to show, or to sons at public crossings? As is said by Cole authorize the jury to infer, that the defendman, J., in Martin's Case, 117 Ala. 385, 23 ant was not guilty of wantonness which conSouth. 231: "It is earnestly contended by ap- tributed to, or resulted in plaintiff's intespellant that such a rule will greatly impede tate's death. It was competent for plaintife commercial transactions, and directly impair to prove the extent and frequency of travel the efficiency of transportation by railroads. along the street which intestate was travel

Soon

propounded to show this were probably lead contained an option to plaintiff to repurchase ing, and for that reason objections thereto the lumber sawed from the timber, and that were properly sustained; but, as to some of payment for the lumber should be in cash on

delivery of specifications, and that it was to be them, we doubt if this ground was good, delivered in all respects as deliveries were made though it is not necessary for us to decide the by defendant to G. & Co. under a contract bepoint, as the case must be reversed. How-tween them. The G. & Co. contract provided

for delivery at the buyer's boom "as fast as ever, questions can and should be so framed water will pe and timber is gotten," and as not to violate the rules of evidence.

that "each and every raft is taken on its own We do not think that it was proper or com

average, and there shall not be two averages petent for plaintiff to have the opinions of worked on any one raft, and that no raft shall

contain less than 300 pieces, said average, if witnesses as to whether or not a person stand- any, to be made at their mill boom.” Held, ing where the deceased was standing at the that the reference to the G. & Co. contract intime of the injury could distinguish the tracks cluded the clauses requiring rapid delivery and of the defendant company from those of the also the provision as to the average, and de

prescribing the number of pieces in a raft, and Louisville & Nashville Railroad Company; or livery of the lumber, which should be made as as to whether, on account of the relative po

as enough could be assembled in such sitions of the two tracks and the lights, there quantities as are usually shipped together; and,

though the seller must be allowed some diswas superinduced something like an optical cretion in consulting his convenience as to quanillusion which made one track look like the tities to be shipped at one time, he could not other. If it be conceded that this was true, manipulate the deliveries for the purpose of

working a fraud on the other party. which was not the actual fact in this case,

[Ed. Note.-For other cases, see Logs and there is no evidence that plaintiff was so de- Logging, Dec. Dig. § 34.*] ceived, or any facts which would justify the 3. CONTRACTS ($ 175*)-PRESUMPTION AS TO inference that he was so deceived.

Good FAITH. The judgment of the trial court is reversed, All contracts are presumed to intend good and the cause is remanded.

faith on the part of the contractors. Reversed and remanded.

[Ed. Note.--For other cases, see Contracts, A majority of the court, composed of Dec. Dig. $ 175.*) ANDERSON, MCCLELLAN, SAYRE, and 4. LOGS AND LOGGING ($ 34*)-SALE OF Loy. EVANS, JJ., concur in the conclusion that the BER-TIMBER-CONSTRUCTION. trial court improperly excluded the plaintiff's standing upon a tract of land which are of

Plaintiff sold defendant all of the pine trees evidence, and that it was error to give the such size that, when all of them shall have been general affirmative charges requested by the manufactured into sawn timber, the average of defendant, and to the effect that there was

the entire lot shall not be less than 30 cubic evidence from which the jury might find that parties hereto that it is not practicable to log

feet per stick. It is understood between the the defendant was guilty of wanton miscon- | any land so that the timber manufactured from duct which proximately contributed to the in- such logs shall average an exact number of feet jury; but do not concur in the conclusions of per stick, and it is agreed that in this case

such reasonable variation from a 30-foot averthe writer on the question of contributory or

age as may result from this cause shall not be subsequent negligence, and do not desire to deemed a violation of this contract or entitle commit themselves to what is said in the either party to claim anything from the other

Held, that the opinion of the writer on this question. DOW- on account of such variation.

contract covered reasonable variations from the DELL, C. J., and SIMPSON, J., dissent, and 30-foot average, but was not intended to au. are of the opinion that the cause should be thorize manipulation of deliveries by the defendaffirmed.

ant on delivering lumber under an option re served to plaintiff to repurchase the manufac

tured lumber, so as to work out an increase (166 Ala. 296)

in the price to be paid for the timber. J. M. ACKLEY & CO. v. HUNTER, BENN &

(Ed. Note.-For other cases, see Logs and

Logging, Dec. Dig. $ 34.* ] CO.'S CO. (Supreme Court of Alabama. Nov. 18, 1909. 5. SALES (8 59*) - CONSTRUCTION — SALE OF Rehearing Denied Feb. 26, 1910.)

TIMBER AND REPURCHASE OF LUMBER. 1. Sales (8 62*) — CONSTRUCTION - PARTIAL tiff to defendant gave plaintiff an option to re

A contract for the sale of timber by plainRESCISSION. A contract, by which plaintiff sold defend of the lumber to be made in all respects as

purchase the lumber sawed therefrom; delivery ant the standing timber on a tract of land, in deliveries were then made by defendant to G. & consideration of an option to plaintiff to pur-Co., under an existing contract between them. chase the lumber manufactured from the timber, Heid, that the delivery specified in the G. & Co. held entire, and that the option, with the provi- contract referred to the manner of delivery prosions with regard to the purchase of the lum- vided in that contract, and not to any other ber, became a part of the contract; and neither delivery which the parties to that contract may party could cancel the part relating to the sale have sanctioned. of the lumber without canceling the entire contract,

[Ed. Note.-For other cases, see Sales, Dec. [Ed. Note.-For other cases, see Sales, Dec. Dig. & 59.*] Dig. § 62.*]

6. CONTRACTS ($ 258*)-RESCISSION-GROUNDS. 2. LOGS AND LOGGING ($ 34*)-CONSTRUCTION It is not every disagreement as to the terms REFERENCE TO ANOTHER CONTRACT.

of a contract which will authorize one of the Plaintiff sold the standing timber on a parties to declare the contract annulled; but tract of land to defendant, and the contract the renunciation must cover the entire per

SION

formance to which the contract binds the prom The bill was for a discovery and a stateisor, and it must be distinct and unequivocal. ment of account and construction of the con

[Ed. Note.-For other cases, see Contracts, tract. The cross-bill sought an abatement of Dec. Dig. $ 258.*]

the original purchase price to the extent of 7. SALES ($ 108*)-SALE OF TIMBER AND RE- the purchase price of 380 acres to which the PURCHASE OF LUMBER-RESCISSION.

A contract of sale of standing timber by complainants had no title. The pleadings in plaintiff to defendant contained an option for the case were settled on the former appeal, the purchase by plaintiff of the lumber sawed found in 154 Ala. 416, 45 South. 909. The therefrom, which provided for the delivery and contract referred to in the opinion is as folmeasurement of the lumber. After several deliveries of the lumber had been made and paid

lows: for, two rafts of the sawed lumber were de “By agreement made on February 7, 1902, livered, and plaintiff refused to pay for them between Hunter, Benn & Co.'s Company, a according to the defendant's specification; but, after defendant had given notice of rescission corporation, and J. M. Ackley & Co., a parttherefor, the money was tendered to defendant nership, naming the partners, the Hunterin accordance with its demands, and the con- Benn Company, being the owners of the folstruction of the contract was reserved by plain- lowing described land, situated in Choctaw tiff for future determination. Held, that plainfor defendant's rescission, since, where a party scription of the land by government subdivitiff's temporary refusal to pay was not ground county, Alabama, to wit: [Here follows dewishes to rescind a contract, he must notify sion]-does hereby sell and convey to J. M. time to comply with the terms of the contract, Ackley & Co. all of the pine trees standing so that the contract was not so rescinded by upon the said land which are of such size that, defendant's notice of rescission as not to be re- when all of them shall have been manufacvived by the subsequent offer of plaintiff.

tured into sawn timber, the average of the [Ed. Note.--For other cases, see Sales, Cent. entire lot shall be not less than 30 cubic feet Dig. $8 277-279; Dec. Dig. $ 108.*]

per stick. It is understood between the par8. LOGS AND LOGGING ($ 34*)-SALE OF TIM- ties hereto that it is not practicable to log BER AND REPURCHASE OF LUMBER-DECIOF INSPECTOR CONCLUSIVENESS

any lands so that the timber manufactured FRAUD,

from such logs shall average an exact number A contract of sale of standing timber, by of feet per stick, and it is agreed that in this which defendant gave plaintiff an option to re

case such reasonable variations from a 30purchase the lumber manufactured therefrom, provided for payment in cash on delivery of foot average as may result from this cause specifications, and that the lumber should be in- shall not be deemed a violation of this conspected at the seller's expense by a persontract or entitle either party to claim anynamed, “whose inspection shall be final.” Held, thing from the other on account of such varithat the purpose of the provision as to inspection was to ascertain its grade before the lum-ation. ber was accepted, and whether it was in ac “(2) Ackley & Co. agree to pay for said cordance with the contract, and such inspec- stumpage upon said lands the sum of $9 per tion was conclusive on both parties, except for fraud; but an error in the average of the acre, such payments to come out of the prolumber delivered, where both parties had the ceeds of the timber cut from said lands, and lumber and all the facts before them and agreed to be made immediately after the sale of each on the average and inspection then made, couldraft or lot of said timber, and in all respects not be inquired into on the ground of fraud.

[Ed. Note. For other cases, see Logs and as hereinbefore shown. It is supposed that Logging, Dec. Dig. § 34.*]

the said lands upon the average will cut about 9. SALES (8 418*)—SALE OF TIMBER AND RE-nine of said timber logs per acre, and until PURCHASE OF LUMBER-BREACH-DAMAGES. such time as one or the other of the parties

Where plaintiff sells defendant the stand- hereto shall request a change in that respect ing timber on a tract of land and elects, under under the provisions thereof there shall be an option in the contract, to repurchase from defendant the lumber sawed therefrom, and de- paid to the said Hunter, Benn & Co.'s Comfendant attempts to rescind the contract to pany the sum of $1 out of the proceeds of resell to plaintiff on insufficient grounds, and each stick of said payment. Should either of proceeds to sell the lumber to other persons, the said parties at said time request that the defendant is liable for damages for the breach of the contract, and defendant cannot complain amount of said payments be changed, and that the measure of damages for violating the the parties hereto cannot agree thereon, then contract is fixed at the difference between the all of said lands shall be estimated by some contract price and the price at which the lum- disinterested and competent timber estimator, ber was sold.

[Ed. Note:--For other cases, see Sales, Cent. to be chosen in the manner hereinafter shown, Dig. SS 1174-1201; Dec. Dig. & 418.*]

and such estimate shall be binding upon both

parties hereto. Should the said estimate Appeal from Chancery Court, Mobile Coun- show that the said lands will cut more than ty; Thomas H. Smith, Chancellor.

nine sticks of 30-foot average timber per acre, Bill by the Hunter, Benn & Co.'s Compa- then the payment to be made from the prony against J. M. Ackley & Co., and cross-bill ceeds of each stick as sold shall be decreased by Ackley & Co. against the Hunter-Benn proportionately. Should the said estimate Company. Decree for complainant, and re- show that the said lands will not cut as maspondent appeals. Affirmed.

ny as nine sticks of such timber per acre, the See, also, 154 Ala. 416, 45 South. 909. payments per stick shall be increased pro

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