This case is largely controlled as to law and facts by the case of Wright v. Bentley Lumber Co., 186 Ala. 616, 65 So. 353. The contract conveyed only the merchantable timber standing upon the land at the time of its execution, and not such that may have become such just prior to the expiration of the contract, which covered a period of five years for the removal of the timber that the defendant bought. After the plaintiff proved the cutting and removal of his timber the burden was upon the defendant to prove that said timber was embraced in the contract, and to do this it had to show that the trees so cut and removed constituted merchantable timber when the contract was made in 1909 and not 1914. It may be that defendant proved that this character of timber was of a merchantable class in 1909, though the plaintiff's evidence controverted this fact, yet the defendant did not prove that all the trees were within the size to be merchantable in 1909. Indeed, it did not show this fact as to all of it in 1914. The witness Matheney testified:
"I took a crew of men and cut down everything with them that was big enough to haul off the land."
It was therefore a question for the jury as to whether or not the contract included the timber cut and removed. It was also a question for the jury as to the defendant's liability for making ruts in the land and causing the same to wash, for it only had the right to go upon the land and haul timber that was bought, but not to haul timber not in the contract of purchase.
There was no error in refusing defendant's requested charges A, C, and E.
There was no error in refusing the general charge as to count 5. It was open to the jury to find that the cutting was willful. *Page 19
There was no reversible error in striking defendant's special plea 3 to count 5. Whether good or not the facts set up were provable under the general issue, and which was interposed to each count.
We have considered all the points argued by appellant's counsel, though it can serve no good purpose to discuss each of them, as those not discussed possess as little merit as those discussed. We find no reversible error in the record, and the judgment of the circuit court is affirmed.
Affirmed.
McCLELLAN, SAYRE, and GARDNER, JJ., concur.