The two counts in the original complaint were trespass. On demurrer sustained to the 2d, the plaintiff amended, by substituting a count in case therefor, — allowable under the statute, — to which a demurrer was again interposed and overruled.
The substantial averments of this count are, that the plaintiff was the owner of the cross and switch ties concerning which the suit was brought, and their value; that the plaintiff placed them on the right of way of the Alabama Great Southern Railroad Company, to be inspected by the inspector and paid for ; that the defendant company wrongfully marked plaintiff’s ties, with the words, ‘ ‘Claimed by the Alabama State Land Company,” by reason of which wrongful act, his ties were refused and not accepted by the railroad inspector, and were not paid for, and plaintiff, in consequence, lost the value of them and was otherwise damaged, etc.
After a demurrer was overruled to this count, the defendant took issue on it, and the cause was tried on it alone.
A witness, Payne, testified that he was the district agent of the Alabama State Land Company in DeKalb county; that he was authorized by the defendant com-*262party to give notice that said company claimed ties which had been taken from its lands and placéd on the right of way of the said railroad company, for sale to said company, and that he marked one tie on each pile of the ties in question, with a brush and lampblack, “Claimed by the Alabama State Land Company.” This evidence tends to show that the ties were so marked by one authorized so to do by the defendant, and that his act in so doing was, therefore, the act o.f the defendant.
The witness,” Blansit, testified that he was present when the tie inspector of the railroad company came along to inspect, pass upon and accept or reject ties which had been placed at the point where these ties were placed, for sale to the railroad company ; that he accepted some ties that were there, but refused to accept or pay for any of those which were marked, — “Claimed by the Alabama State Land Company,” — and that defendant has not paid for any ties which were not accepted by the tie inspector. The plaintiff himself testified, that the mark on said ties did not injure the ties themselves, further than to cause the railroad inspector for the railroad company to reject and not pay for them. But he testified further, that the ties had been damaged about one-half in value since they were placed on the right of way of the railroad, which damage resulted from being exposed to the sun and weather after the time that the tie inspector had come along for the purpose of accepting ties for his company. Hi's proof also tended to show, that the .ties were cut from his own land and not from the lands of defendant, while that for defendant tended to show they were cut from its land.
1. The demurrer to the 2d count, in its several grounds, was general, and did not assign specifically the causes therefor, and was, therefore, properly overruled^. 3 Brick. Dig 705, § § 70-79.
2. The parts of this count which the defendant moved to strike, set up matter pertinent to be- alleged to make out the plaintiff’s case; and the motion to strike was properly overruled.
3. After the evidence had been closed, the defendant moved to exclude all the plaintiff’s evidence. If the 2d count was good, as we have held it was,—as for the de*263murrer interposed to it, — the plaintiff’s evidence was pertinent as tending to prove its averments.
4. When the evidence is conflicting,or when adverse inferences may be drawn from it, or when there is any evidence tending to establish the case of the other party, the rule prevailing is that the general charge should not be given.—Bromley v. Birmingham M. R. R. Co., 95 Ala. 404; Foxworth v. Brown, 114 Ala. 299. The proof was conflicting in this case, and the general charge for defendant was properly refused. The second charge was also properly refused. There was no reason for confining the recovery to nominal damages. The third, contained the same instructions as the second; and in addition, that if the jury believed the ties were cut from defendant’s land, they should find for defendant. Even admitting the correctness of the last instruction in the charge, coupled as it was with the previous instruction therein, the charge as a whole was properly refused.
The vice of the 4th charge, from what has already been said, readily appears.
Affirmed.