Opinion
6 Div. 889.
April 24, 1919.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
Cabaniss Bowie, of Birmingham, for appellant.
Harsh, Harsh, Harsh, of Birmingham, for appellee.
This record contains much evidence from which the jury could infer that Howard Smith was acting for and in behalf of the defendant A. L. Smith and Clinton Smith, as well as himself, when contracting to have the trees cut. A. L. Smith was with him at the time, and was the prime actor in trading for the property, whereby he was disposing of certain Birmingham holdings. Whether he subsequently contemplated selling the property to his son and nephew, or going in with them, as some of the evidence indicates, matters not, for under either theory he was the chief negotiator, and was primarily interested at the time that Howard Smith ordered the trees cut, and which was done in his presence and hearing, and we do not see how he can escape liability for the consequences simply because he may have contemplated, after making a trade which he deemed beneficial, disposing of the property to his son and nephew. At any rate, the trespass was committed before he had disposed of same, and while he, more than any one else except the plaintiff, was interested in making the trade, and the cutting of the posts and the proposed fencing of the place was upon the theory that the defendant had acquired or would acquire the land under the then negotiations, and was to some extent and purpose for his benefit, regardless of what he intended doing with the land after he acquired the same. The judgment of the circuit court is affirmed. Affirmed.
MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur.