author: PER CURIAM.

text:
    Cathy S. Atchison DEES and Frank D. Gustin v. James H. GILLEY. Cathy S. Atchison DEES and Frank D. Gustin v. Clifton LATHAN.
    SC 1409, SC 1410.
    Supreme Court of Alabama.
    Nov. 24, 1976.
    Rehearing Denied Dec. 17, 1976.

      Robert E. Parsons, Birmingham, for appellants.
    Wyman 0. Gilmore, Grove Hill, Emmett R. Cox, Mobile, for appellee.
   PER CURIAM.

Defendants appeal from judgments for plaintiffs in two wrongful death actions which were consolidated for trial. We affirm.

Defendants are the driver and the owner of an automobile which struck and killed plaintiffs’ teenage sons.

Defendants argue that the judgments should be reversed on grounds that the trial court erred: (1) in refusing to grant defendants’ motions for directed verdicts and for judgments notwithstanding the verdicts or, in the alternative, for new trials; (2) in refusing to give certain of defendants’ written, requested instructions to the jury; and (3) by giving an oral charge which was misleading, confusing, and contrary to the law and evidence of the case.

At approximately 2:00 a.m., July 21,1973, defendant Cathy Atchison Dees was driving a 1973 Chevrolet owned by defendant Frank Gustin, who was a passenger. Along with other passengers, they were traveling south on Alabama Highway 17 near Millry in open country at 50 to 60 miles per hour. The moon was not visible and there were light patches of fog on the road.

Just after going over a slight rise, Mrs. Dees saw an object that “looked like a box or a big paper bag” in her lane 200 to 300 feet from the top of the rise. She took her foot off the accelerator and put it on the brake pedal. The road beyond the object was straight and level for at least half a mile, and there was nothing to prevent Mrs. Dees from going around the object. Nevertheless, she remained in her lane. When she “got close enough to see,” the object rose up and she realized that it was a person. She “froze” and ran over and killed- two teenage boys, who apparently had been lying in the road parallel to each other from the center line to the right side. The car traveled another 260 feet dragging the boys’ bodies about 100 feet. There were no skid marks, and there was no evidence of fog in the area which might have obscured Mrs. Dees’ vision.

Witnesses who earlier had seen the boys, Calvin Lathan and Donnie Gilley, testified that they appeared to have been drinking. Others testified that they had seen the boys drinking beer. Blood tests indicated .01 percent ethyl alcohol in Lathan’s blood and .13 percent in Gilley’s. The testimony was that the former level would have no significant effect on a person’s judgment while the latter level would impair coordination and muscular ability and would impair the ability of a person lying in the road to get up and out of the way of an approaching car.

A few minutes prior to the accident several witnesses had seen the boys walking along the road. One testified that Gilley had spoken to him; another, that the boys appeared to be thumbing; and another, that they were waving. There is no evidence indicating why they were lying in the road.

Mrs. Dees was not under the influence of alcohol or other drugs.

Each boy’s father filed a wrongful death action against Mrs. Dees and Mr. Gustin. The two actions were consolidated for trial. The jury returned a verdict of $50,000 for each plaintiff, and judgments were entered accordingly.

I.

Defendants argue that the only theory available to plaintiffs is the doctrine of subsequent negligence, or “last clear chance,” and that the evidence is insufficient to support a verdict based on the subsequent negligence of defendant Dees. In particular, they assert that plaintiffs have failed to prove that Mrs. Dees acquired actual knowledge of a perilous position of plaintiffs’ sons in time to avoid the accident.

But such actual knowledge may be inferred from proof that the driver was looking in the direction of the victims and that her view was unobstructed. Scotch Lumber Co. v. Baugh, 288 Ala. 34, 256 So.2d 869 (1972). Mrs. Dees admitted not only that she was looking in the direction of the boys and that her view was unobstructed but also that she actually saw something in the road 200 to 300 feet ahead of her. These admissions constituted at least a scintilla of evidence that Mrs. Dees acquired actual knowledge in time to avoid the accident and thus required that the question go to the jury. Land v. Shaffer Trucking, Inc., 290 Ala. 243, 275 So.2d 671 (1973).

Defendants also contend that the evidence established as a matter of law that the decedents were guilty of contributory negligence, because their initial contributory negligence continued, proximately contributing to the accident, and because at least one of the decedents was aware of their immediate peril.

However, a victim’s initial contributory negligence in placing himself in a position of peril is no defense to subsequent negligence on the part of defendant. A.B.C. Truck Lines v. Kenemer, 247 Ala. 543, 25 So.2d 511 (1946). For a victim’s negligence to be a defense to defendant’s subsequent negligence, defendant must show subsequent contributory negligence on the part of the victim, i. e., a negligent act or omission with knowledge of the then present and impending peril. Southern Ry. Co. v. Stewart, 153 Ala. 133, 45 So. 51 (1907).

Defendants have contended that the evidence shows that at least one of the victims may have been aware of the present danger, viz., Mrs. Dees’ testimony that one of the boys rose up as she approached. That evidence hardly supports a ruling that both the victims were guilty of subsequent contributory negligence as a matter of law. Notably, defendants have failed to show that the victims became aware of the impending peril in time to avoid injury by use of reasonable care. Subsequent contributory negligence cannot be predicated upon their failure to use reasonable care to avoid injury unless they had time to do so after becoming aware of their immediate danger or peril. Cf. Owen v. McDonald, 291 Ala. 572, 285 So.2d 79 (1973); Emmett v. Alabama Great Southern R. Co., 226 Ala. 310, 146 So. 811 (1933). See Alabama Pattern Jury Instructions—Civil 30.03.

II.

Defendants also complain that the verdict of $50,000 in each case is excessive. The trial court refused to grant a new trial on this basis. As we reiterated in Boise Cascade Corp. v. Lee, 291 Ala. 666, 286 So.2d 836 (1973), in which we affirmed a judgment for $175,000, damages in a wrongful death action are penal in nature and are within the sound and honest discretion of the jury. The trial court’s ruling strengthens the presumption in favor of the jury’s verdict. We find no grounds for holding these verdicts to be excessive.

III.

Defendants contend that the trial court’s denial of the following requested instructions to the jury was error:

“No. 10 [No. 11] ... I charge you ladies and gentlemen of the jury that if you are reasonably satisfied from all the evidence that Donnie Ray Gilley [Calvin Lathan] was guilty of any negligence on the occasion of the accident which proximately caused or contributed to his death, then in the suit brought by his father, James H. Gilley [Clifton Lathan], your verdict must be for the defendants.”
* * * * • * *
“No. 13 [No. 14] I charge you ladies and gentlemen of the jury that if you are reasonably satisfied from all of the evidence that the Defendant Cathy Dees was guilty of some negligence which proximately caused or contributed to the accident, and if you are also reasonably satisfied from all the evidence that Calvin Leon Lathan [Donnie Ray Gilley] was guilty of some negligence which proximately caused or contributed to the accident and his death, then in the suit brought by Mr. Clifton Lathan [Mr. James H. Gilley] your verdict must be for the Defendants. . . .”

These requested instructions do not correctly state the doctrine of contributory negligence as it applies in cases in which subsequent negligence is an issue, because they do not differentiate between original contributory negligence, which, as noted above, does not bar recovery for a defendant’s subsequent negligence, and subsequent contributory negligence, which does. Refusal of these instructions was therefore not error.

IV.

Defendants complain that certain portions of the oral charge to the jury were misleading, confusing, and contrary to the law and evidence of the case. In particular, they complain of the following statement: “. . . this would not apply to subsequent negligence, contributory negligence would not. . . . ” In the paragraph following this statement, the court correctly stated, “To such subsequent negligence, pri- or contributory negligence, if any, is no defense. . . . ” The following day before the jury began deliberations, the court withdrew the first statement and repeated the second, but gave no instruction concerning subsequent contributory negligence.

In view of the correction made by the court, its statements concerning contributory negligence and subsequent negligence are correct, although they may be incomplete in light of defendants’ contention that the victims were guilty of subsequent contributory negligence. In spite of the correction, the instructions given may have had a tendency to mislead or confuse. Nevertheless, defendants cannot complain of any of these matters on appeal, because they did not request an explanatory or a correct complementary charge. Horace v. VanBlaricon, 291 Ala. 530, 283 So.2d 421 (1973).

AFFIRMED.

BLOODWORTH, JONES, ALMON and EMBRY, JJ., and SIMMONS, Retired Circuit Judge, sitting by designation of the Chief Justice, concur.


source: Caselaw Access Project

author: BLOODWORTH, Justice.

license: Public Domain

text:
    BIRMINGHAM SOUTHERN RAILROAD CO., a corp. v. James E. McDONALD.
    SC 1483.
    Supreme Court of Alabama.
    Nov. 24, 1976.

      William C. Knight, Jr., Birmingham, for appellant.
    Timothy M. Conway and Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for appellee.
   BLOODWORTH, Justice.

Defendant, Birmingham Southern Railroad Co., appeals from a judgment for plaintiff, James E. McDonald, in an action brought under the Federal Employers’ Liability Act.

In March 1974, plaintiff was employed by defendant as a hostler. A hostler’s job is to service locomotives and includes checking the fuel, lube oil, air compressor oil, governor oil, and water. To perform these tasks, a hostler must traverse the walkway which borders a diesel locomotive’s hood.

One day as plaintiff was servicing defendant’s locomotive No. 93, he stepped on a small object and his foot slid off the walkway, causing him to fall to the ground. As a result of the fall, his right elbow was fractured and the right arm below the elbow is 18 percent permanently impaired.

Locomotive No. 93 is a class 900 locomotive and is used primarily as a switch engine. All 900 series locomotives have a 17-inch-wide walkway around the hood. The walkway has no guardrail and is approximately five feet above the ground. All 900’s have handrails mounted on the hood above the cabinet doors.

Plaintiff filed suit under the Federal Employers’ Liability Act alleging, inter alia, that defendant negligently failed to furnish plaintiff a reasonably safe place to work. The jury rendered a verdict for plaintiff in the amount of $56,850. Defendant’s motion for a new trial was denied.

On appeal, defendant urges four grounds for reversal: (1) the trial court’s allowing certain testimony by a state safety inspector; (2) the trial court’s refusing to allow defendant to take the testimony of a qualified Federal Railway Agency inspector; (3) improper argument by plaintiff in his closing argument; and (4) the jury’s rendering a quotient verdict. We affirm.

I

During the trial, plaintiff was allowed to read into evidence portions of the deposition of Mr. James E. Hammett, Sr., an industrial safety inspector with the Alabama Department of Industrial Safety. Mr. Hammett specializes in railroad safety inspections. He testified that he had issued several notices to defendant for failing to have guardrails running along the walkways of several of its small switching locomotives, including No. 93, pursuant to Rules 52 and 34 of the state safety manual.

Defendant contends that permitting this testimony was error. It argues that the safety manual does not have the force of law and is not admissible on the issue of negligence. It argues that Mr. Hammett’s testimony was inadmissible because it dealt with the ultimate issue of whether failure to install guardrails violated any applicable safety act and constituted negligence. Further, defendant argues that interstate railroad safety is within the exclusive control of the appropriate federal agency and thus that competing state regulations are inapplicable.

Defendant’s arguments hinge upon the admission of Mr. Hammett’s statement that he had cited defendant for violations of state safety regulations. However, after defendant had objected to admission of that statement and the court had sustained the objection, defendant itself insisted that it be admitted. Up to that point, Mr. Hammett had been portrayed as a state railroad safety inspector who had recommended that defendant install guardrails. Defendant cannot now complain of an alleged error which it invited. Southern Electric Generating Co. v. Lance, 269 Ala. 25, 110 So.2d 627 (1959).

Moreover, both plaintiff and the court treated Mr. Hammett’s testimony as that of an expert who had firsthand knowledge of the situation and who had notified defendant of the alleged hazard. Defendant did not object to the use of Mr. Hammett as an expert witness, but only to certain portions of his testimony. Defendant’s complaint is that the court admitted Mr. Hammett’s testimony that he had issued notices to defendant concerning the lack of guardrails. However, since negligence was at issue, that testimony was admissible on the question as to whether defendant knew or should have known of the alleged hazard. Sears v. Southern Pacific Co., 313 F.2d 498 (9 Cir. 1963).

II

Defendant contends that the trial court erred in refusing to permit it to depose Mr. Dub Rodgers, a qualified Federal Railway Agency inspector, to show that locomotive No. 93 met all requirements of federal law. Plaintiff argues that the trial court did not abuse its discretion in refusing to permit the deposition because defendant waited until the last minute (late in the afternoon the day the case was assigned for trial) to seek to obtain the testimony and because taking the deposition would have required the trial judge’s presence after regular court hours. Furthermore, plaintiff argues, it was not necessary to take the deposition because he agreed to stipulate that Mr. Rodgers would testify that the locomotive did not violate federal regulations. (Defendant never offered into evidence any stipulations to this effect.) Moreover, Mr. Hammett and other witnesses stated the same thing in their testimony. Thus, even if we were to assume that the court erred in refusing to permit defendant to take the deposition of Mr. Rodgers, the error was harmless in view of plaintiff’s proffered stipulation and the same testimony given by other witnesses. Chambers v. Culver, 289 Ala. 724, 272 So.2d 236 (1973).

Ill

Defendant asserts in new trial motion that plaintiff’s counsel on two separate occasions during his closing argument urged the jury to award plaintiff at least $68,000 or to mistry the case and allow another jury to do justice. Defendant argues that those statements were so “grossly improper and highly prejudicial” that they are grounds for reversal even though defendant did not object at the time the statements were made.

We agree with plaintiff that, since the transcript of the record does not contain any portion of the closing arguments, there is no record that the alleged statements were made. This Court cannot consider these matters outside the record. Southern Electric Generating Co. v. Lance, supra.

Moreover, the alleged improper argument bears only on the amount of the verdict, and defendant has not contended in brief that the trial judge should have granted a new trial on the ground of excessiveness of the verdict. Consequently, as this Court held in Cooper v. Watts, 280 Ala. 236, 239, 191 So.2d 519, 521 (1966), the error, if any therein, is rendered harmless, viz.:

“The other questions argued by appellant relate to the admission of evidence and argument to the jury by appellee’s counsel. All of these argued ^assignments of error relate to, and have a bearing upon, the amount of damages to be awarded the plaintiff; but the amount of the damages is not questioned by appellant in his brief, although one of the grounds of his motion for a new trial charged excessiveness of the verdict. Accordingly, error, if there be error in any of the challenged • rulings, is rendered harmless and cannot work a reversal.

IV

Several weeks after the trial of this case, a piece of paper was discovered among the exhibits taken from the jury room. On that piece of paper were twelve figures which were added together. The sum was divided by twelve. The quotient was $56,-850, the exact amount of the verdict which the jury had rendered. Along with its motion for a new trial, defendant attached affidavits from four jurors stating that it had been suggested that they average the amounts that the jurors thought should be the verdict and that they had agreed that the result would be their verdict. Only one of the affiants stated that this agreement had been reached before the calculation was made, and even he later testified that they had not agreed in advance to be bound by the result. In response, plaintiff produced affidavits of four jurors, including two who had executed affidavits for defendant. All four stated that there had been no prior agreement that they would be bound by the result of the calculations.

As plaintiff concedes, the piece of paper establishes a prima facie case of a quotient verdict. Security Mutual Finance Corp. v. Harris, 288 Ala. 369, 261 So.2d 43 (1972). “While jurors are not permitted to impeach their own verdict, they may by affidavit disclose facts to sustain their verdict.” Fleming v. Knowles, 272 Ala. 271, 278, 130 So.2d 326, 332 (1961).

Even if the affidavits offered by defendant are considered, it is not clear from them that the jurors agreed in advance to be bound by the result of their calculations. In fact, the jurors stated positively in the testimony and in the affidavits offered by plaintiff that they did not agree in advance to be bound by the result of their calculations. The trial court, considered this evidence on defendant’s motion for a new trial and found that the verdict was properly reached. We find no reason to disturb that finding.

AFFIRMED.

HEFLIN, C. J., and JONES, SHORES, and EMBRY, JJ., concur.


text:
    ALABAMA FUEL SALES CO., INC. v. VULCAN ENERGY RESOURCES CORP.
    SC 1643.
    Supreme Court of Alabama.
    Nov. 24, 1976.

      Vance, Thompson & Brown, Birmingham, for appellant.
    Robert R. Sexton, Birmingham, for appel-lee.
   BLOODWORTH, Justice.

Alabama Fuel Sales Company, Inc., (“Broker”) sued Vulcan Energy Resources Corporation (“Producer”) for money allegedly due as a commission for Broker’s services in obtaining a purchaser for Producer’s coal, and Producer counterclaimed for money allegedly due on previous sales through Broker. The trial court sitting without a jury found that Broker was not entitled to a commission and that Producer was entitled to recover part of its counterclaim. Broker appeals. We affirm as to Producer’s counterclaim and reverse and remand as to Broker’s claim.

I. Broker’s Claim

The Broker negotiated with Southern Services, Inc., purchasing agent for Alabama Power Company, for the sale of a large stockpile of Producer’s coal to Alabama Power. On April-4,1974, pursuant to the negotiations, Producer and Broker sent a letter to Southern Services stating the terms of Producer’s offer.

The trial court found inter alia, that on April 8 or 9, Southern Services orally informed Broker that Alabama Power accepted the offer and that Alabama Power would issue purchase order number 94313 and also orally directed Broker to begin shipment of the coal. On that same day, Broker orally conveyed this information and instruction to Producer.

On April 10, 1974, Producer orally stated to someone at Southern Services that its offer of April 4 was withdrawn. Producer then sold the coal to another buyer.

No written memorandum of Alabama Power’s acceptance was received by Broker until April 12 or 13. At that time, Broker received a copy of the offer letter of April 4 signed by Southern Services and Alabama Power and indicating that the offer had been accepted. Southern Services mailed the acceptance on April 10 or 11. The trial court stated that it could not determine the exact day on which it was mailed.

The trial court found, inter alia, that before the offer was made Broker and Producer had agreed that Broker would be paid a commission only if the offer resulted in a legally enforceable contract. The court held that Broker had the burden of proving that a legally enforceable contract came into existence before Producer’s withdrawal of the offer on April 10. It also held that the burden had not been satisfied because it could not determine whether the written acceptance was mailed on April 10 or 11. See Unofficial Recompiled Code of 1958, Tit. 7A, § 2-201.

Broker contends that, even if no legally enforceable contract was ever created, it was entitled to a commission as a matter of law because it had found a purchaser ready, willing, and able to buy Producer’s coal. Broker further contends that a legally enforceable contract was created before Producer withdrew its offer. It argues that a valid oral contract was created prior to the withdrawal and that the offer letter of April 4 satisfied the Statute of Frauds. Then, taking a slightly different approach, Broker argues that a written contract was created when the written offer of April 4 was orally accepted by Alabama Power.

In reply, Producer first cites the ore ten-us rule and then argues that Broker did not produce a purchaser ready, willing, and able to buy Producer’s coal. Producer also contends that oral acceptance of the offer did not create a valid oral contract because the offer letter stated, “If you agree to the terms and conditions set forth above, please sign and return one copy to us.”

The general rule regarding a broker’s right to receive a commission is that unless the seller and the broker have agreed to the contrary the broker is entitled to receive a commission when he procures a purchaser ready, willing, and able to buy on the seller’s terms, even though the sale is never consummated. Espalla v. Lyon Co., 226 Ala. 235, 146 So. 398 (1933); O’Neal v. Plowden, 220 Ala. 317, 124 So. 882 (1929); Alabama Fuel & Iron Co. v. Adams, Rowe & Norman, 216 Ala. 403, 113 So. 265 (1927); Malone v. Dillard, 212 Ala. 361, 102 So. 705 (1925). Generally it is not necessary that the broker produce a purchaser whom the seller knows to be ready, willing, and able to buy as long as the purchaser is in fact ready, willing, and able to buy. Smith v. Sharp Real Estate Co., 200 Ala. 666, 77 So. 40 (1917).

In this case, the trial court found that Producer and Broker had agreed that Broker was to receive a commission if, and only if, the offer resulted in a legally enforceable contract. It is our conclusion that this finding is not supported by the evidence in the case. We think it to be “clearly erroneous” under Rule 52, ARCP. Producer’s president, testifying concerning the amount of the commission, stated that there was never any agreement regarding a commission. Our examination of the record has revealed no evidence whatsoever of any agreement concerning Broker’s right to a commission. Since there was no evidence of an agreement to the contrary, Broker was entitled to a commission upon its producing a purchaser ready, willing, and able to buy on Producer’s terms. Authorities, supra.

Whether a broker has produced a purchaser who is ready, willing, and able to buy upon the seller’s terms is a question for the trier of fact. Espalla v. Lyon Co., supra. Because this question has not been addressed by the trier of fact in this case, we reverse and remand for a new trial.

II. The Producer’s Counterclaim

Producer counterclaimed for money allegedly due on open account for three transactions. The trial court found Broker was indebted to Producer for two of those transactions. Broker contends that the evidence does not support the court’s finding regarding either of the two transactions. Producer replies that invoices and records kept in the ordinary course of business were introduced into evidence and showed “rather conclusively” a balance owing.

Having examined the record, we do not think that the findings of the trial court on the counterclaim are clearly erroneous. Rule 52, ARCP. Therefore, we affirm the judgment for Producer on its counterclaim.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

JONES, ALMON, and EMBRY, JJ., and SIMMONS, R. C. J., sitting by designation of the Chief Justice, concur.

      . It is contended by Producer that Alabama Power Company was not ready, willing, and able to buy upon the terms of the offer but altered the terms in its purchase order. We do not address this issue as it enters into the trial court’s determination as to whether the Power Company was ready, willing and able.


text:
    FIRST CITY NATIONAL BANK OF OXFORD, a National Banking Association v. Robert L. WHITMORE et al.
    SC 1647.
    Supreme Court of Alabama.
    Nov. 24, 1976.
    Simmons & Torbert, Gadsden, for appellant.
    Burns, Shumaker & Davis, Gadsden, for appellees.
   BLOODWORTH, Justice.

This is an appeal from an order granting a preliminary injunction against foreclosure of a mortgage. We reverse and remand.

Plaintiffs are general contractors who contracted with Regency Health Club, Inc., to construct a building to be used as a health club. Fred Fitts, president of Regency, negotiated on its behalf. Prior to the commencement of construction, Robert L. Whitmore, a plaintiff, was advised by Tom Stinson, president of First City National Bank of Oxford, that First City had loaned the money to Regency for construction of the health club. In April 1975, Regency executed a mortgage to First City for $175,000. Plaintiffs began construction in July 1975. The contract price for the building was $180,000. In September 1975, when construction was 40 percent complete, plaintiffs received their first payment on the contract from First City. They were informed that no further funds would be paid by First City for work on the health club because First City’s legal loan limit was $135,000 to $140,000 and $131,864 had already been expended under the loan agreement. Of that amount, $23,864 was paid to plaintiffs and $108,000 was paid to Fitts and Regency. Stinson testified that First City had taken a mortgage for $175,-000 because it expected to get another bank to provide the amount that exceeded First City’s legal loan limit. After being informed that no more funds would be available from First City, plaintiffs testified they were told by defendants that they should continue working and were assured that defendants would try to work something out. They say that, in reliance on these assurances, they continued work on the building until it was about 70 percent complete. At that point, plaintiffs had performed approximately $109,000 worth of work on the health club. Regency defaulted on its mortgage, and First City instituted foreclosure proceedings. Sale of the property was scheduled for December 29, 1975.

Plaintiffs filed suit on December 22,1975, to enjoin foreclosure on the grounds that defendants had made fraudulent misrepresentations to plaintiffs concerning the availability of funds for constructing the health club. Regency, Fitts, Stinson, and First City were made defendants.

Plaintiffs sought the injunction against foreclosure in connection with the suit, which seeks damages for fraud and for breach of the construction contract. They do not clearly state the theory that underlies their request for the injunction. Plaintiffs apparently sought the injunction to prevent sale of the building and land to a bona fide purchaser at a foreclosure sale prior to the determination of their claim.

After a hearing, the trial judge entered an order granting a preliminary injunction enjoining foreclosure pending a final hearing. First City appeals.

We hold that the trial court erred in granting the preliminary injunction for several reasons.

First, it is not at all clear from the complaint that the purpose of plaintiffs’ suit is to enforce a lien. If this is not the purpose of the suit, the trial court had no basis for granting the injunction.

Second, plaintiffs have offered no evidence whatsoever to show that they have a lien. There is, at most, the bare assertion, in complaint and brief, that they have a lien. Having failed to prove the existence of a lien, there is certainly no ground for issuance of an injunction to protect it.

Moreover, at the hearing on the preliminary injunction, the burden was on plaintiffs to show that they would suffer irreparable injury, namely, loss of their lien, if the foreclosure were not enjoined. They did not do so. An injunction should not be granted unless it is necessary to prevent irreparable injury. Watts v. Victory, 295 Ala. 567, 333 So.2d 560 (1976).

Finally, even if we assume that plaintiffs have a lien and that they will effectively lose it if the mortgage is foreclosed, they still have a remedy in the suit for fraud. The availability of this remedy is another reason for concluding that plaintiffs have failed to show that refusal of a preliminary injunction would cause them irreparable injury.

REVERSED AND REMANDED.

JONES, ALMON, and EMBRY, JJ., and SIMMONS, R. C. J., sitting by designation of the Chief Justice, concur.


author: JONES, Justice.

text:
    CHARLES H. McCAULEY ASSOCIATES, INC., a corporation, v. Eula Martin SNOOK, as Executrix of the Estate of Charles J. Snook, Jr., Deceased.
    SC 1710.
    Supreme Court of Alabama.
    Nov. 24, 1976.

      D. H. Markstein, Birmingham, for appellant.
    Gilbert E. Johnston, Sydney L. Lavender and John D. Quenelle, Birmingham, for ap-pellee.
   JONES, Justice.

This appeal by McCauley Associates, Inc., challenges an adverse interpretation of a buy-sell agreement whereby the trial Judge awarded Eula M. Snook, the widow and personal representative of Charles Snook, the deceased president of McCauley, a judgment for the adjusted book value of the stock, plus life insurance proceeds.

The Facts

Five employees of Charles H. McCauley Associates, including Mr. Snook, purchased the defendant corporation soon after Mr. McCauley’s death in 1971 by paying $9,200 each and borrowing in the name of the corporation an additional $800,000. Their personal guaranty of this loan was backed up by the purchase of $160,000 insurance policy on the life of each stockholder. Each policy, subsequently increased to $250,000, was owned by McCauley and listed McCau-ley as sole beneficiary.

Shortly thereafter, all five stockholders executed a buy-sell agreement, the pertinent provisions of which are:

“2. In the event, of the death of any stockholder, the Company agrees that it will purchase all of the stock owned by said Stockholder at his death and the personal representative of said deceased Stockholder shall be obligated to sell said stock to the Company at the price and upon the terms and conditions hereinafter set forth.
“(a) In the event the Company shall be the holder of any life insurance upon the life of the deceased Stockholder, the proceeds of which are payable to the Company, that portion of the proceeds which is in excess of the deceased stockholder’s share of any corporate indebtedness endorsed by him, shall be paid by the Company to the personal representative of the deceased Stockholder within thirty (30) days after receipt from the insurer in part payment of the purchase price of the stock of said deceased Stockholder.
“(b) In addition, the purchase price of said stock shall be the book value of said stock as shown by the most recent Company Balance Sheet adjusted as follows:
“Book value as shown by said most recent Balance Sheet which shall be adjusted by adding thereto all receivables due the Company on the last day of the month immediately preceding the date of death of the deceased Stockholder, less a reasonable and proper adjustment for bad debts and less accounts payable of the Company.”

Mr. Snook died on December 10, 1973. As of November 30, 1973, the initial indebtedness of $800,000 had been reduced to $540,000, and an additional payment of $240,000 was credited by the bank on December 10,1973. Out of the total life insurance proceeds of $250,986.54, McCauley paid: (1) $190,986.54 to the Snook estate; and (2) $60,000 to the bank — Vs of the $300,-000 indebtedness as of December 10. A November 30 balance sheet was furnished by McCauley to Mrs. Snook showing a corporate book value of $609,437, with the estate’s shares of stock being worth $121,-887.40.

The Judgment Below

Upon the completion of an extensive ore tenus hearing, the trial Court, having concluded that the 1971 agreement was binding on the parties, found:

“. . . that the Buy And Sell Agreement expressly fixes the amount of money to be paid for said stock as follows:
“(1) The insurance proceeds upon the life of decedent less his pro rata share of any indebtedness to the Bank, and “(2) The book value of his stock ownership as shown by the most recent balance sheet of the company with certain adjustments.”

For the sake of clarity, we observe that neither of the parties contend that this buy-sell agreement provides for the use of life insurance proceeds to purchase in full the deceased member’s stock. Rather, the parties agree that the pertinent provisions of this contract are to the effect that payment of the life insurance proceeds in excess of the deceased member’s share of the indebtedness is in addition to the book value of the stock. This interpretation comports with the trial Judge’s final decree and stands unchallenged on appeal by either party.

Applying this interpretation, the trial Judge, on the one hand, used December 10, the date of death, to determine the balance of the indebtedness and. thereby computed the life insurance proceeds payable to Mr. Snook’s estate after payment of his pro rata share of such indebtedness. On the other hand, he used November 30, “the last day of the month immediately preceding the date of death,” to compute the estate’s pro rata share of the book value of McCauley.

It is the trial Judge’s use of these two different dates (December 10 for fixing corporate indebtedness and November 30 for fixing the book value) that formulates the dispositive issue on this appeal.

Before we proceed with our discussion of the respective contentions bearing on this issue, we believe that our review of the record has disclosed an inadvertence in the trial Judge’s computation of the award that is worthy of our clarification. The final decree rendered a judgment for $94,456, plus interest at 6% per annum from June 10, 1974. In briefs and during oral argument, counsel for both parties acknowledged their inability to substantiate from the record the $94,456 figure arrived at by the trial Judge in his final decree.

This was a long and complicated trial spanning many days and comprising a three-volume record with multiple exhibits (16 for each side). Inadvertently, and understandably, the trial Judge made reference to the wrong balance sheet after correctly designating the proper balance sheet in his initial findings. By using a balance sheet marked defendant’s exhibit 15, he took the book value, $113,071; properly subtracted $18,615, the cash surrender value of Mr. Snook’s policy; and arrived at the balance due the Snook estate, $94,456. The trial Judge had rejected this balance sheet in his preliminary findings and unquestionably he intended to use the balance sheet marked plaintiff’s exhibit 8, which shows a book value of $121,887.40, less the cash surrender value of the policy of $18,615. Thus, the trial Court obviously intended to award the Snook estate $103,272.40, plus interest at 6% per annum from June 10, 1974.

The Decision

The dispositive issue may be restated thusly: Did the trial Court err in interpreting the buy-sell agreement to provide that one date (December 10) was applicable for fixing the corporate debt, while finding that another date (November 30) was applicable for fixing the stock’s book value? We hold that this interpretation was legally incorrect; therefore, we reverse and remand for recomputation of the award due the Snook estate by McCauley in accordance with the instructions contained in this opinion.

To put this issue in perspective, we review in summary the significance of the two dates in controversy. Because the buy-sell agreement provides for the payment of 1) all life insurance proceeds in excess of the deceased member’s proportionate share of the corporate indebtedness and 2) book value of his stock, the Snook estate is entitled to $48,000 more if December 10 is used in fixing the corporate indebtedness rather than November 30 — the date used in fixing the book value. This is due to the fact that between the book value date (November 30) and the date of death (December 10) McCauley paid $240,000 on the corporate indebtedness, Vs (Mr. Snook’s share) being $48,000. Or, stated conversely, if the same date of November 30 is used for fixing'both the indebtedness and the stock’s book value, the estate is entitled to $48,000 less total payment from McCauley — -the excess of life insurance after payment of the estate’s share of the bank debt of $540,000 rather than $300,000. Because the book value date of November 30 remains constant under either interpretation, the difference, then, is Vs of McCauley’s $240,000 bank payment, or $48,000.

In our consideration of the issue here presented — construing a contract which by its terms is ambiguous and uncertain — we are guided by the following well-established legal principles:

A court in construing contracts, which on their face are ambiguous, will look to the intention of the parties. City of Fairhope v. Town of Daphne, 282 Ala. 51, 208 So.2d 917 (1968).

The court derives the intention of the parties by looking at the whole of the provisions of the contract. Sisco v. Empiregas, Inc. of Belle Mina, 286 Ala. 72, 237 So.2d 463 (1970); City of Albany v. Spragins, 208 Ala. 122, 93 So. 803 (1922).

Along with the provisions of the contract, the conduct and relations of the parties and the subject matter may also be used in construing the contract to ascertain the intention of the parties. Merchants’ Nat. Bank of Mobile v. Hubbard, 220 Ala. 372, 125 So. 335 (1929).

Where a contract is subject to two constructions, unconscionable results are to be avoided. Lowery v. May, 213 Ala. 66, 104 So. 5 (1925).

Courts cannot make contracts for parties, but must give such contracts as are made a reasonable construction and enforce them accordingly. R. P. Harris, & Co. v. Thomas, 17 Ala.App. 634, 88 So. 51 (1921).

We observe at the outset that these propositions, easily stated and readily understood in the abstract, are oft times difficult of application to the particular facts of any given case. But this difficulty of application does not relieve the court of its duty to resolve the controversy caused by conflicting interpretations arising from ambiguous and uncertain language; nor is the court relieved of its duty to enforce the terms of the contract according to its interpretation of the intent of the contracting parties.

Our analysis proceeds on the premise that the provisions of this contract are not only ambiguous as to the date to be applied in fixing the corporate indebtedness, but it is likewise ambiguous as to the date to be applied in fixing the book' value of the deceased member’s stock. The only reference in the contract to a date certain is found in paragraph 2(b), which directs certain adjustments to the “most recent Balance Sheet be made “on the last day of the month immediately preceding the date of death of the deceased Stockholder.”

Applying the legal principles above set out, and with ample supportive evidence, the trial Court found that the November 30 balance sheet (plaintiff’s exhibit 8) was “the most recent Balance Sheet”, even though this document was neither prepared nor presented to the Snook estate until more than five months following Mr. Snook’s death. While the accuracy of plaintiff’s exhibit 8 was strongly contested by McCau-ley during trial and on appeal, both parties concede the applicability of November 30, 1973, as the date for fixing the corporate stock’s book value.

Given the trial Court’s construction of the contract as to the stock’s book value date of November 30, the inquiry which necessarily follows is: Does the record reveal any competent evidence to support the trial Court’s conclusion that the indebtedness date, according to the contract, should be December 10 (date of Mr. Snook’s death)? Our careful review of the record fails to disclose any such supportive evidence.

Appellee does not suggest that the trial Court’s conclusion in this regard is supported by objective testimony; rather, counsel for the Snook estate contends that it is logical, even necessary, to use the date of Mr. Snook’s death to establish the balance of the corporate debt because only then were the insurance proceeds due and payable to extinguish the deceased member’s proportionate share of the debt. But the source and availability of the funds for payment of McCauley’s bank indebtedness, on the one hand, and the applicable date to establish the balance due the bank, on the other hand, are two different matters. Indeed, no payment was due the estate or the bank, either by way of life insurance proceeds or for book value of the estate’s stock, until the date of Mr. Snook’s death.

It is the uncertainty and inconsistency of result, influenced by uncontrolled or unilaterally controlled variables, that force us to the conclusion that it was not the date of death but November 30 that the parties necessarily intended as the date to establish both the bank balance of the corporate indebtedness and the book value of the stock. The following hypothesis will illustrate our reasoning: Suppose McCauley had drafted a corporate check payable to the bank for $240,000 on November 30 (Friday); the corporate balance as of November 30 properly reflected this reduction of assets; Mr. Snook died on Sunday, December 2; and the bank credited payment of the $240,000 on Monday, December 3. Surely, a court of conscience would vindicate the Snook estate’s cry of “foul” if McCauley contended that the book value had been reduced by the $240,000 payment to the bank but that the corporate debt had not been reduced by that same amount.

While it is true, under these assumed facts, that the $240,000 payment was properly reflected on the November 30 balance sheet but not credited by the bank to McCauley’s indebtedness at the time of Mr. Snook’s death, the contracting parties could hardly have intended that McCauley take the dual benefits of the unreduced debt and the reduced book value of the stock. In construing ambiguous contracts, such unconscionable results are to be avoided. Lowery v. May, supra. The facts of the instant case invoke the same rule of construction.

Consider one other of multiple variables that could produce uncertain results: Suppose McCauley had been aware of Mr. Snook’s imminent death on December 10 (which, incidentally, the record discloses to be the case) and had elected by design to withhold payment of the $240,000 to the bank until December 11. Under these facts, the November 30 balance sheet would remain unchanged but, the Snook estate’s share of the indebtedness would still be $108,000, or $48,000 more than if the $240,-000 payment had been paid one day earlier. Clearly, if we accept the construction that the parties intended to use the two different dates for fixing the two accounting incidents, we would have accorded to parties to the contract the intent to permit unilateral manipulation by one party to the detriment of the other.

To be sure, this very problem, though not by design, was presented (and left unresolved) in the instant case. Coincidentally, the corporate check to the bank was drawn on December 6 but not credited by the bank to the reduction of the debt until December 10. Did the moment of Mr. Snook’s death on December 10 precede or follow the moment of the reduction of the debt? We think the mere suggestion of this inquiry precludes any validity to the contention that the parties intended to use different dates to establish the two separate accounting incidents.

We hold that not only is such an interpretation unsupported by competent evidence, but the rules of contract construction, when applied to the instant case, render such a result irrational and unreasonable. This random and capricious fixing of the date of the debt, which is inconsistent with the more definitive date for the fixing of the book value, could hardly have been within the contemplation of the contracting parties.

We now turn to the specifics of computing the estate’s award using November 30, 1973, as the date for fixing the stock’s book value and the balance of McCauley’s bank indebtedness. As shown by the November 30 balance sheet, the estate’s share was worth $121,887.40, less the cash surrender value of Mr. Snook’s life insurance policy in the amount of $18,615, for a net product of $103,272.40. The life insurance proceeds in excess of the November 30 indebtedness balance was $142,986.54, which is computat-ed by taking the total insurance proceeds of $250,986.54 received by McCauley and subtracting $108,000 — the estate’s share of the $540,000 indebtedness of the corporation as of November 30. As provided by the agreement, the excess insurance proceeds of $142,986.54 are added to the book value of $103,272.40 to make the total payment due the Snook estate $246,258.94. The corporation has already remitted $190,986.54, leaving an amount due by McCauley to the Snook estate of $55,272.40, plus interest at 6% per annum from June 10, 1974.

We find no merit in the remaining contentions raised by the appellant.

REVERSED AND REMANDED WITH INSTRUCTIONS.

BLOODWORTH, SHORES and EMBRY, JJ., and SIMMONS, Retired Circuit Judge, sitting by designation of the Chief Justice, concur.

      . We note parenthetically that we do not necessarily agree with this interpretation in view of the concluding phrase of paragraph 2(a), . . in part payment of the purchase price of the stock of said deceased stockholder." Appellant agrees with appellee, for the purpose of this appeal, however, that the total purchase price to be paid the estate by the corporation is that portion of the life insurance proceeds which exceeds the estate’s pro rata share of the corporate debt plus the book value of the estate’s corporate stock; and, therefore, the term “in part payment” has no reference to the book value. At any rate, it is not incumbent upon this Court to decide an issue not presented on appeal.

      . This $18,615 cash surrender value deduction was necessary and proper due to the fact that this figure was included in the November 30 balance sheet as an asset. It was correct to include the surviving members’ share of the total cash surrender value in computing book value but not the deceased member’s share because the full face value of the life insurance policy, in accordance with the terms of the contract, is payable to the estate.

      . This date is fixed by another provision of the contract not set out in this opinion.-


author: BLOODWORTH, Justice. JONES, Justice

text:
    Robert W. CLARK, Jr. v. Joseph Brian CHITWOOD.
    SC 1736.
    Supreme Court of Alabama.
    Nov. 24, 1976.
    Rehearing Denied Dec. 17, 1976.
    Walker, Hill, Gullage, Adams & Umbach, Opelika, for appellant.
    Samford, Denson, Horsley & Pettey, Ope-lika, for appellee.
   BLOODWORTH, Justice.

Defendant appeals from grant of a new trial in a negligence action.

Plaintiff, Joseph Brian Chitwood, sued defendant, Robert W. Clark, Jr., for injuries and damages sustained when an automobile driven by Gregory Emory Jackson swerved to avoid hitting defendant, who was riding a bicycle along the edge of the highway, and collided head-on with plaintiff’s automobile. Prior to the trial of this suit, plaintiff settled with Jackson for $10,000. In this suit, the jury rendered a verdict for defendant. Plaintiff moved for a new trial, and the court granted the motion without stating the grounds for its action. We affirm.

Plaintiff’s motion stated, inter alia, that a new trial should be granted because the verdict was contrary to the preponderance of the evidence.

At approximately 8:40 p. m. (CDT) on May 25,1974, plaintiff was driving his automobile in the southbound lane of Wire Road between Auburn and Tuskegee, and Gregory Emory Jackson was approaching in the northbound lane. Both were traveling at 30 to 35 miles per hour. Jackson testified that he suddenly saw a figure on a bicycle in the lane about ten yards ahead of him. He swerved to avoid hitting the cyclist, crossed over into plaintiff’s lane, and collided with plaintiff. Jackson testified that he did not have room to go past defendant in his own lane and that he had not noticed the approaching car.

The police officer who investigated the accident testified that the bicycle upon which defendant was riding had no lights or reflectors, except for a small rectangular yellow reflector on one side of each pedal. These reflectors could be seen from the rear only if the pedals were turned so that the reflectors faced the rear. They also were covered with road film or mud and could not be seen very well.

Plaintiff contends that the only questions for the jury were proximate cause and damages because defendant was negligent as a matter of law for violating Tit. 36, § 58(26), Code of Alabama of 1940 (Recompiled 1958):

“(a) Every bicycle when in use at night-time shall be equipped with a lamp on the front which shall emit a white light visible from a distance of at least five hundred (500) feet to the front and with a red reflector on the rear of a type approved by the department which shall be visible from all distances from fifty (50) feet to three hundred (300) feet to the rear when directly in front of lawful upper beams of head lamps on a motor vehicle. A lamp emitting a red light visible from a distance of five hundred (500) feet to the rear may be used in addition to the red reflector. .

He contends that defendant’s clear violation of this rule of the road was the sole proximate cause of the accident. He further contends that there is other evidence that Jackson could not tell the exact distance his headlights shone ahead and that the accident may have resulted from the combined and concurring negligence of both defendant and Jackson, and therefore that neither was the sole proximate cause. He argues that the trial judge should not be reversed for granting him a new trial, citing Cobb v. Malone, 92 Ala. 630, 9 So. 738 (1891), and Hubbard Bros. Const. Co., Inc. v. C. F. Halstead Contractor, Inc., 294 Ala. 688, 321 So.2d 169 (1975).

According to' defendant’s contentions, Jackson was negligent as a matter of law because he admitted his low-beam headlights provided him with visibility of only 30 to 35 feet ahead, in contravention of Tit. 36, § 42(b)(2), requiring headlights on low beam to reveal vehicles or persons at a distance of at least 100 feet; the jury was justified in concluding he was not keeping a proper lookout; and these factors were the sole proximate cause of the accident. Moreover, defendant contends that his failure to have a headlight in violation of statute was for the jury under the evidence. Further, he argues there was no evidence that the verdict was the product of prejudice or other improper motive.

Thus, he contends that the case finally boils down to negligence and proximate cause. He argues that these questions were for the jury and that the great preponderance of the evidence supports the jury’s verdict.

Where the trial court grants a new trial without specifying the grounds therefor and one of the grounds in the motion is that the verdict is contrary to the evidence, the appellate court presumes that the trial court granted a new trial because it concluded that the verdict was contrary to the great preponderance of the evidence or was unjust in light of the evidence. In such cases, the appellate court will not reverse the trial court’s order unless the great weight of the evidence plainly and palpably shows that the trial court was in error in granting a new trial. Hubbard, supra.

We cannot say that the great weight of the evidence in this case plainly and palpably shows that the trial court was in error in granting a new trial. To the contrary, there is substantial evidence which, if believed, would support a verdict for plaintiff. The trial judge, who saw and heard the witnesses testify and observed their tone and demeanor, and noticed their candor or lack of it, might certainly have found that the verdict for defendant was contrary to the great preponderance of the evidence or was unjust in light of the evidence.

AFFIRMED.

SHORES and EMBRY, JJ., and SIMMONS, R. C. J., sitting by designation of the Chief Justice, concur.

JONES, J., concurs specially.

JONES, Justice

(concurring specially):

My concurrence in this case is somewhat reluctantly given. I have not changed my mind since my dissent in Hubbard; but it is clear that the decision in this ease is based on the current law of this state with respect to the scope of appellate review of a trial court’s ruling on a motion for a new trial. Further persistence for my point of view at this time would be futile effort. I reserve the right to continue to persuade the other members of this Court that the language here used to test the trial Court’s exercise of discretion — “that the verdict was contrary to the great weight of evidence or was unjust in light of the evidence” — is something entirely different from the original rule laid down in Cobb —“decisions granting new trials will not be reversed unless the evidence plainly and palpably supports the verdict.” But, for now, I concur with the decision in this case for I am persuaded that it follows the scope of review presently held by this Court.


text:
    K. L. JONES, Jr., et al. v. Erline S. GLADNEY.
    SC 1754.
    Supreme Court of Alabama.
    Nov. 24, 1976.

      Wilson & Wilson, Jasper, for appellants.
    Bankhead, Savage & Stephens, Jasper, for appellee.
   JONES, Justice.

This is a contest between brothers and sisters on one side and their stepmother on the other following the death of their respective father and husband. The intestate, John Jefferson Gladney, had two daughters and one son by a previous marriage — the son having predeceased his father leaving two surviving children (grandchildren of the intestate). The intestate remarried and lived with Erline Gladney as his wife for about three years before his death on August 28, 1973.

The assets of the estate were as follows:

1) A $3800 joint bank account with his wife, Erline;
2) A $14,000 joint bank account with his three children;
3) A Winnebago motor home;
4)A 15-foot boat, motor, and trailer;
5) A two bedroom brick house with 15 acres of land; and
6) Household furnishings, tools, yard accessories, etc.

The widow checked out the $3800 account. The two children of the intestate split the $14,000 approximately three ways by paying their stepmother $4600. They also sold the Winnebago, the boat, motor, and trailer for a total of $8,450; gave their deceased brother’s two children $1800; refused to give any part of this $8,450 to their stepmother; and claimed that she had been overpaid a total of $3000.

The widow claims that her stepchildren shared the $14,000 account with her in accordance with the intestate’s wishes, expressed by him during his lifetime; that her stepdaughters also agreed to sell the motor home, boat, motor, and trailer and split the proceeds four ways; and that they changed their minds only after she signed a bill of sale for these items of personal property.

The widow, after being appointed admin-istratrix, filed suit in circuit court to enforce her two stepdaughters to give her one-fourth of the $8,450. The stepdaughters answered, alleging that they had already paid their stepmother more than her share of the “heir” property.

When the case was called for trial, the presiding circuit Judge invited the lawyers to confer out of his presence and explore settlement possibilities. They reached an agreement with respect to certain items of personal property, but not with respect to the two bank accounts and the $8,450. Then, the trial Judge conferred with the lawyers concerning the procedure for resolving the remaining issues. The difficulty with the appeal revolves around what happened at this point. The trial Court, in its final decree, holding for the widow, recites: . . and the parties having agreed to present the facts to the court by affidavits, and the facts having been presented to the court by affidavits, the court . . . and its bench note entered on the date of the conference states, “To be submitted upon stipulated affidavits of parties 6-20-75.”

The appellants (the two stepdaughters), through their attorney, contend that they did not agree to submit the cause for final determination upon interrogatories and affidavits; that this was meant merely to assist the judge in his understanding of the pleadings and to better formulate the issues for the purpose of a subsequent ore tenus trial.

By entering a final decree on the written testimony of the parties, the appellants contend that the trial Judge entered a summary judgment on his own motion. Not so, says the appellee; this agreement among the lawyers and the Court was explicit, understood by all the participating parties, accurately reflected in the trial Court’s bench notes, complied with by the parties, and consummated in the final decree below.

Under the posture of the record before us, we perceive no legal means of going behind the record in order to reverse this cause on the “summary judgment” ground asserted by the appellants. Attorneys for the parties are authorized to effect by agreement the manner of taking testimony absent a showing that the trial Court limited or prohibited such agreed manner. Rule 43(a), ARCP. Moreover, agreements made in open court or at pretrial conferences are binding, whether such agreements are oral or written. Rule 47, ARAP. See also Brocato v. Brocato, 295 Ala. 532, 332 So.2d 722 (1976). While this is not an ore tenus case, our consideration of the evidence does not constrain us to reach a different result than that reached by the trial Court. See Farmer v. Johns-McBride Engineering Service, 256 Ala. 335, 54 So.2d 708 (1951).

Our careful review of the record, however, does disclose one error in the trial Court’s computation of the award in favor of the widow against her two stepdaughters. If our understanding of the record is correct, the Court totaled the expenses incurred by the widow and assessed this full amount against the defendants. This has the effect of relieving the widow of her proportionate share of these costs of administration. When this inadvertence in computation was called to the attention of counsel during oral argument, counsel for appellee eommendably requested this Court to enter the appropriate corrective order. Therefore, we affirm the trial Court’s judgment on the condition that the trial Court, within 30 days from the date hereof, amend its final decree to properly assess the total costs of administration proportionately among the parties.

AFFIRMED CONDITIONALLY.

BLOODWORTH, ALMON and EMBRY, JJ., and SIMMONS, R. C. J., sitting by designation of the Chief Justice, concur.


text:
    CITY OF BIRMINGHAM, a Municipal Corporation, et al. v. Charles LONG, et al.
    SC 1785.
    Supreme Court of Alabama.
    Nov. 24, 1976.

      John P. Carlton, Birmingham, for appellants.
    James R. Shaw, Birmingham, for appel-lees.
   JONES, Justice.

We set out only so much of the facts as are pertinent to the single dispositive issue — whether the execution of a contract between the parties, whose specifications are changed to conform to an injunction issued by the circuit court, renders moot the appeal challenging the circuit court’s order granting the injunction?

The City of Birmingham, on February 12, 1976, issued an invitation for bids for the 1976 wrecker service contract. The contract specified that the bids would be open for a period of two weeks. On February 24, 1976, two days before the deadline expired, Charles Long and Wayne Nelson, d/b/a Birmingham Wrecker Service, sued for relief. Plaintiffs were granted a preliminary injunction and an oral hearing was set and held 30 days later. At the conclusion of the oral hearing, the trial Court issued its decree: (1) extending the time for placing bids until 12 o’clock noon May 17,1976; and (2) exempting plaintiffs from the contract requirement of maintaining a storage lot within 2V2 miles of City Hall.

During the pendency of this appeal by the City of Birmingham and immediately prior to oral argument, the appellee, Birmingham Wrecker Service, filed a motion to dismiss the appeal on the ground of mootness. The motion alleges that the jus-ticiable controversy between the parties which existed at the time of filing of notice of appeal has now been extinguished by the execution of a valid contract for wrecker service between the parties. The City concedes the factual premise on which the motion to dismiss is grounded, but counters with the contention that the issue presented on its merits is so affected with the public interest as to demand a decision.

It is a well-settled general rule that it is not the function of appellate courts to give opinions on moot questions or abstract propositions. Lewis v. Head, 238 Ala. 151, 189 So. 886 (1939). Likewise, Alabama recognized the “public interest” exception to the general rule. Sullivan, as Director of Public Safety v. Cheatham, 264 Ala. 71, 84 So.2d 374 (1956); Bradford v. State, 226 Ala. 342, 147 So. 182 (1933). In Willis v. Buchman, 240 Ala. 386, 199 So. 892 (1941), it was said:

“On the subject of a public interest, it is conceded that every person belonging to the public is interested in having decided every question of law which governs individual conduct or interprets contracts such as any of them may enter into.
“ . . . But that is not the sort of public interest which will be taken care of so as to prevent the dismissal of an appeal when there ceases to be a personal interest of the parties in its decision. As pointed out in some of the cases, it must affect the interest of the body politic as, for example, its revenue laws, or some situation ‘affected with a public interest’ as public utility rates, where the state or government is said to be ‘as a substantial trustee for the public.’ ”

Here, the City could have kept this appeal viable for decision by the following alternative methods: (1) By continuing the wrecker service provided by the appellee without executing a new contract; or (2) by obtaining a stay of the mandatory provisions of the injunction pending appeal under Rule 62, ARCP. Instead, the City elected to let bids for a new contract in compliance with the directives of the trial Court’s injunction. Birmingham Wrecker Service was the successful bidder and the contract was executed between the parties in accordance with the specifications in the contract and the bid thereon.

We think it necessarily follows that this elective course of action taken by the City to reopen the contract for bids, accept the low bidder, and execute the contract constitutes an effective abandonment of this appeal; and this for the reason that there no longer exists between these parties, who are each voluntary parties to a newly executed contract for wrecker service, a justiciable controversy. This rule of mootness is applicable to the dismissal of this appeal in like manner as if a third party — other than Birmingham Wrecker Service — had been the successful low bidder on the contract.

Unquestionably, a competitive bidder (in this case Kemp’s Garage), whose place of business is within the 2V2-mile requirement specified by the initial contract requirements, maintains an interest in having this Court decide the City’s challenge of the trial Court’s elimination of this specification. But the private interest of a competitive bidder does not meet the “affected with the public interest” requirement so as to demand a decision on the merits.

Applying the established mootness criteria of our decisional law to the facts of the instant case, we hold that the motion to dismiss is well taken and is hereby granted. Moreover, the City suggests this mootness potential in its reply brief as follows:

“The City’s only alternative would have been to have let the existing wrecker contracts lapse and leave the City without any wrecker service, or, after invitations to bid were promulgated, let a new contract which could render the instant appeal moot.”

The latter alternative contingency has now become a reality. Therefore, this appeal is dismissed as moot.

APPEAL DISMISSED.

BLOODWORTH, ALMON and EMBRY, JJ., and SIMMONS, Retired Circuit Judge, sitting by designation of the Chief Justice, concur.


author: EMBRY, Justice.

text:
    James C. COCHRAN v. OZARK COUNTRY CLUB, INC.
    SC 1872.
    Supreme Court of Alabama.
    Nov. 24, 1976.

      David C. Emery and Kenneth R. Cain, Ozark, for appellant.
    Woods & Corbitt, Ozark, for appellee.
   EMBRY, Justice.

This case involves the application of Code of Ala., Tit. 46, § 65, which regulates those engaged in the business of general contracting, specifically the construction of structures costing $20,000 or more.

Plaintiff, Cochran, and defendant, Ozark Country Club, entered into a contract whereby Cochran was to build a swimming pool for Ozark and to be paid $36,939.72 plus 15% of that sum. Cochran realized he was in derogation of § 65 and agreed with Ozark to divide the original contract into two separate contracts of less than $20,000 each. The pool was built, he was paid over $35,000, and now sues for $28,191.91 for labor and materials furnished. Ozark sets up as a defense the illegality of the contract and counterclaims for damages.

The trial court granted Ozark’s motion for summary judgment and made certain findings: (1) the plaintiff was not a licensed contractor; (2) the type of work involved in the contract was that type of work covered by the statute; (3) the cost of the work was more than $20,000.

We affirm the judgment of the trial court.

That Cochran was not licensed and that the work was the type covered by the statute is undisputed. Cochran maintains there is a genuine issue of material fact as to whether the cost of the work was over $20,000 when two separate contracts relating to a single construction project call for amounts less than this. We are of the opinion that the word “cost” in § 65 refers to the aggregate amount which the contractor is to receive for his work. Here, Mr. Cochran was to receive a total of at least $36,939.72. We agree with the trial court that the law cannot be circumvented in the manner attempted by the parties in this cause.

Plaintiff further contends that defendants are estopped from asserting the illegality of the contract because they are guilty themselves of inequitable conduct. The contention is not well founded. Plaintiff cannot, by way of estoppel, endow with validity a transaction which is illegal and against public policy. For the law applicable to this case, see Tucker v. Walker, 293 Ala. 589, 808 So.2d 245 (1975), and Cooper v. Johnston, 283 Ala. 565, 219 So.2d 392 (1969).

AFFIRMED.

HEFLIN, C. J., and BLOODWORTH, JONES and ALMON, JJ., concur.


author: SHORES, Justice.

text:
    ALABAMA POWER COMPANY, a corp. v. BREWTON BOARD OF ZONING ADJUSTMENT et al.
    SC 1793.
    Supreme Court of Alabama.
    Dec. 3, 1976.

      Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellant.
    Tonsmeire, McFadden. & Riley, Mobile, James E. Hart, Jr., Brewton, for appellee, Annie C. Jernigan.
   SHORES, Justice.

Alabama Power Company made application to the Brewton Board of Zoning Adjustment for a variance from the Brewton zoning ordinance which governed the proposed site of an electrical substation. A hearing was held and the variance was denied. The Power Company appealed to the circuit court, where the cause was tried de novo without a jury. Appellee Jernigan, one of the affected landowners, was permitted to intervene in the circuit court. After a hearing, the trial court entered its order denying the Power Company a variance. This appeal is from that judgment.

The evidence showed that the Power Company had bought a vacant lot which was zoned for a single family residence use. A variance could be granted by the Board of Zoning Adjustment, subject to such conditions as the Board required to preserve and protect the character of the area and otherwise promote the purpose of the zoning ordinance.

The Power Company had previously applied for and was granted a variance on the subject lot prior to the current application, but the action of the Board was set aside by the circuit court after Mrs. Jernigan filed an action for declaratory judgment challenging the action of the Board on the ground that it was illegally constituted at the time it granted the variance. The judgment of the trial court in that action was not appealed and is not challenged here.

The Power Company argues that the trial court erroneously denied its application for a variance in this case because the evidence shows that it has suffered unnecessary hardship in the denial of the application, that the injury to it is unique, that the public interest would better be served by allowing the variance, and that that factor should be weighed along with the effect that the variance would have on the surrounding property.

Evidence adduced on behalf of the Power Company tended to show that the Brewton area required an additional substation, that engineering studies indicated that the area in which the lot was situated was the most desirable area for such a substation and that the Power Company had purchased the lot for that purpose, having paid approximately $4,000 for it, and that it was the only site available in the area. It denied that the substation would have any adverse effect on the surrounding property. The lot had been purchased after the first variance was granted, and before the court declared that action of the Zoning Board void.

On the other hand, Mrs. Jernigan, as in-tervenor in opposition to the variance, put on evidence which indicated that the presence of an electrical substation in the neighborhood would have an adverse effect on surrounding property values, that it would be unsightly, and would emit a noise which would disturb the peaceful enjoyment of surrounding property. There was some evidence that the presence of the installation would likely interfere with television reception in the area. Mrs. Jernigan denied the Power Company’s assertion that the lot involved was the only suitable lot available for the construction of a substation.

Under the statutes creating it, a board of adjustment has the authority to grant variances from zoning ordinances. Under Title 37, § 781, Code, the boards of adjustment are given the power to hear and decide appeals from decisions of administrative officials, to decide special exceptions, and:

“ . . .To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done. . . . ”

In the instant case, the Board of Adjustment refused to grant the variance and the Power Company appealed, as it had a right to do, to the circuit court. Under our statute the appeal is de novo. However, as stated in Nelson v. Donaldson, 255 Ala. 76, 80, 50 So.2d 244, 248 (1951):

“The inquiry in the circuit court is neither enlarged nor diminished by appeal. The scope of inquiry on appeal is the same as before the board of adjustment, though the circuit court is a court of general jurisdiction. In other words, under our statute the authority of the circuit court on appeal to permit a variance from the terms of the ordinance is the same as that conferred on the board of adjustment by § 781, Title 37, Code 1940.

In Nelson, the court went on to say that variances from the terms of an ordinance should be permitted only under “ . peculiar and exceptional circumstances. Hardship alone is not sufficient. The statute says ‘unnecessary hardship.’ . . . ” (255 Ala. at 84, 50 So.2d at 251)

That ease also delineated the scope of review available in this court on appeal from a decision of the trial court; and held that inasmuch as the testimony is taken orally before the trial court, the trial court’s findings on the facts has the effect of a jury verdict, and will not be disturbed on appeal unless plainly erroneous.

We have reviewed the evidence presented in this case and find that there was evidence from which the trier of the facts could conclude that the denial of the variance would not constitute an “unnecessary hardship” to the Power Company. Therefore, we are not at liberty to reverse the trial court on this basis.

The Power Company next contends that the statute which empowers a board of adjustment to grant or deny a variance from a zoning ordinance also requires the board, and the trial court on appeal, to make a “return which concisely sets forth facts as may be pertinent and material to show the grounds of the decision that is on appeal,” citing Title 37, § 781.

The Alabama statutes were taken generally from the Standard State Zoning Enabling Act prepared by the U.S. Department of Commerce, which was adopted in many states. Nelson v. Donaldson, supra. The standard act provided that review of the acts of such boards was to be by petition for certiorari. Alabama, however, like many other states, provided instead that judicial review would be by way of appeal for a trial de novo in the circuit court. The provision of the standard act requiring the board to make “a return” (to the writ of certiorari) concisely setting forth the material facts upon which the decision was made, is meaningless where a trial de novo is mandated. We are in agreement with the appellee that the last two sentences of § 781 were inadvertently included in the Alabama act, inasmuch as that act rejected review by ^certiorari and adopted instead judicial review by way of an appeal de novo.

For that reason, we cannot agree with the Power Company that Rule 52(a), ARCP, requires the trial court to make a finding of fact in cases appealed to it de novo from decisions of boards of adjustment. The Power Company argues that since the act requires the board to make findings of fact, the trial court is also required to do so, since it sits “as a glorified board of adjustment.” We agree that on a trial de novo in the circuit court, that court sits in a sense as the board of adjustment. However, this does not require a finding of fact under Rule 56(a). That rule makes mandatory a finding of fact by the trial court, only when required by statute. Inasmuch as we hold that Title 37, § 781, makes no such requirement, either by the board or the court on appeal de novo, there is no error to reverse for failure of the trial court to make findings in this case.

The judgment appealed from is, therefore, affirmed.

AFFIRMED.

MADDOX, FAULKNER, and BEATTY, JJ., and SIMMONS, Retired Circuit Judge, sitting by designation of the Chief Justice, concur.


text:
    Julia D. SEALE v. Buford B. SEALE.
    Civ. 827.
    Court of Civil Appeals of Alabama.
    Aug. 25, 1976.
    Rehearing Denied Sept. 15, 1976.
    Ford & Ford, Tuscaloosa, for appellant.
    J. Russell Gibson, III, Phelps & Owens, Tuscaloosa, for appellee.
   PER CURIAM.

This is an appeal from a divorce decree. The appellee-husband has filed with this court a motion to dismiss the appeal. The husband’s motion is bottomed on the premise that the wife’s appeal was not timely perfected. After careful consideration, we find the motion to dismiss is due to be granted and the appeal dismissed.

The record reveals the following: A final decree of divorce was rendered on the 23rd of December, 1975. On the 27th day of January 1976, the wife, appellant here, filed a motion for new trial and a motion to alter and amend the judgment of the court. The January 27th motions were set for hearing on February 9, 1976. Apparently, hearing was continued until March 5,1976, at which time it was heard.. On March 16, 1976, the wife’s motions were denied.

As able counsel for appellant in his excellent brief and his well reasoned oral argument concedes, Rule 59(b) of ARCP mandates that a motion for new trial must be served not later than thirty days after entry of judgment. Furthermore, 6(b) of ARCP expressly prohibits any enlargement of the time for taking any action under Rule 59(b). Additionally, Rule 4(a) of ARAP requires notice of appeal from a civil judgment to be filed with the clerk of the trial court within forty-two days of the date of the entry of judgment or order. But, the filing of a post-trial motion pursuant to Rule 59(b) supersedes the running of the time for filing notice of appeal. See Rule 4(a)(3), ARAP.

By implication, it can be seen from the above that the filing of an untimely motion under Rule 59(b) does not suspend the running of the time of appeal. Federal cases interpreting the comparable federal rule so hold. See Wright and Miller, Federal Practice and Procedure, § 2812, and cases cited therein. Specifically, we note the following contained in § 2812 of Wright and Miller:

“The time limit on a new trial motion is extremely important. The time cannot be enlarged by the court.49 An untimely motion must be denied and does not extend the time for appeal.50” [Footnote citations omitted.]

We find the above quotation to be a correct statement of the law. Clearly, in this instance the new trial motions, etc., were untimely.

We believe it fair comment to note that distinguished counsel for the wife agrees with the above. However, the wife contends that while the above is generally correct, there is an exception. This exception is that under unique circumstances in which a party was lulled by the court into acting after the time had run, the appeal time would be extended. See Thompson v. Immigration and Naturalization Service, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404; Wolfsohn v. Hankin, 116 U.S.App.D.C. 127, 321 F.2d 393, rev’d. per curiam, 376 U.S. 203, 84 S.Ct. 699, 11 L.Ed.2d 636.

We have considered these cases and find them to be inappropriate to the instant appeal. In these and other cases cited to us by counsel for the wife, the trial judge took affirmative action — e. g., ruling the new trial motion timely, granting an enlargement of the period for filing the motion— which induced reasonable reliance thereon by the complaining party. We have located but one case where such action was not taken by the trial court, in which case the affected party appeared before the court pro se. Pierre v. Jordan, 9 Cir., 333 F.2d 951, cert. denied, 379 U.S. 974, 85 S.Ct. 664, 13 L.Ed.2d 565. The fact that Pierre appeared without representation by counsel, to this court, accounts for the imposition of the unique circumstances doctrine in the absence of the type of affirmative action discussed above.

Here, the trial court did nothing to “lull” a party into acting after the time had run. The wife was represented by counsel. The trial court only set the wife’s motion down for hearing and heard the motion as requested by the wife. We do not find this action to come within the purview of the “unique circumstances” doctrine enunciated in Thompson and Wolfsohn, supra. It is thus unnecessary for us to pass upon that doctrine itself.

We therefore find the appellee-husband’s motion to be well taken.

MOTION GRANTED; APPEAL DISMISSED.

All the Judges concur.

      . We note that the wife’s present attorneys were not the original attorneys.


text:
    In re Julia D. SEALE v. Buford B. SEALE. Ex parte Julia D. Seale.
    SC 2077.
    Supreme Court of Alabama.
    Dec. 3, 1976.
    F. Michael Ford, Tuscaloosa, for petitioner.
    None for respondent.
   SHORES, Justice.

Petition of Julia D. Seale for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Seale v. Seale, 339 So.2d 1028.

WRIT DENIED.

HEFLIN, C. J., and MADDOX, FAULKNER and BEATTY, JJ., concur.


author: HOLMES, Judge.

text:
    Stewart Claude MOODY v. Charla Joyce Johnson MOODY.
    Civ. 846.
    Court of Civil Appeals of Alabama.
    Sept. 8, 1976.
    Rehearing Denied Sept. 30, 1976.

      Matthis W. Piel, Montgomery, for appellant.
    Whitesell & Gordon, Montgomery, for ap-pellee.
   HOLMES, Judge.

This is an appeal from an order requiring appellant, Stewart C. Moody (hereinafter Moody), to convey certain property to his wife, Charla Joyce Johnson Moody, appellee herein. This order was issued pursuant to a divorce decree rendered April 1, 1974.

The record reflects the following:

On August 31,1964, the appellant became the holder of what is best described as a license to use certain land owned by Alabama Power Company, to wit, Lot No. 216 on Martin Lake. Subsequent to acquisition of the recreational site, a cabin was built thereon. Thereafter in April of 1973, Moody declared bankruptcy, and as a fee for representing him in the bankruptcy proceedings, on March 28, 1973, Moody attempted to convey his interest in the cabin to his attorney, The Honorable Matthis W. Piel. The property was listed in Moody’s schedules filed in the bankruptcy proceedings.

The “recreational site agreement” between Moody and Alabama Power stated:

“13. The Licensee shall not transfer his license nor any interest therein nor sub-let the land herein described nor permit anyone to occupy or use said land or any of the buildings, structures or facilities thereupon without the written consent of the Licensor, and in any and all events each and every one of the terms, conditions and covenants of this license governing the use and occupancy by the Licensee shall apply to invitees, the Licensee being responsible to the Licensor for all the acts of the invitees in the event that such invitees breach any of the covenants, terms, or conditions of this license. The Licensee warrants that at all times the full title to all the buildings and facilities placed upon the licensed premises shall be exclusively held by him, and that he will create no encumbrances upon his title to such buildings and facilities.”

Alabama Power’s consent to the transfer from Moody to Piel was never obtained.

In October of 1973, appellant and his wife separated. The wife’s attorney on January 11, 1974, drafted a letter of proposed settlement in which it was suggested that the lake cabin be sold and the proceeds used in satisfaction of one of her debts. This letter was sent to Moody’s attorney, Piel, and on January 21, 1974, Piel recorded in the El-more County Probate office the bill of sale which purported to convey the cabin to him. Apparently, there was no response to the letter of proposed settlement.

The wife filed her petition for divorce on January 28, 1974. Appellant Moody having failed to answer the complaint by March 27, 1974, a default judgment was entered against him on that date. On April 1,1974, a final decree of divorce which awarded the Lake Martin lot and cabin to the wife was rendered.

Thereafter, appellant through his attorney filed a motion for a new trial. This motion was denied on May 9, 1974. Moody then filed a petition to modify the final decree of divorce. Appellant in this petition prayed only for a reduction of alimony and child support payments. He made no mention of setting aside the award of the cabin to his wife, although it was at the hearing on this petition to modify that he first introduced evidence of his transfer of the cabin to Piel. Specifically, Moody in response to a question by his attorney Piel stated that in return for representation at the bankruptcy proceeding: “I signed my half interest of the lake place over to you.”

On the other hand, appellee at this June 4, 1974, proceeding testified that the appellant had told her that the transfer to Piel was a method of preserving the cabin from the creditors’ claims in the bankruptcy proceeding.

The court on September 16, 1974, pursuant to testimony adduced at the June 4 hearing, did reduce the monthly child support payable by appellant but refused to modify the April 1 divorce decree in any other respect.

Approximately one year later, the appel-lee still had received neither an assignment of the recreational site agreement nor a conveyance of certain other real property awarded by the decree. She then on May 14, 1975, filed a motion requesting that the deputy register be directed both to convey the real property and also to effect an assignment of the license agreement with Alabama Power.

A hearing on this motion was conducted on December 12, 1975, at which time the “recreational site agreement,” the “bill of sale” purporting to transfer the cabin to Piel, and certain other instruments and testimony were introduced into evidence. Pursuant to this hearing, the trial court on December 22, 1975, made the following findings of fact:

“6. That the Bill of Sale or document proporting [sic] to convey from Stewart C. Moody to Matthis W. Piel, interest in said lot was never recognized as being valid by the licensor, Alabama Power Company.
“7. The lot and cabin in question, have apparently been used openly and exclusively by the wife and the children in her custody for the past year or so.
“The Court having heard arguments from counsel on the effectiveness of the transfer of interest from the husband to his attorney, M. Piel, the Court finds that the ‘Bill of Sale’ from Mr. Moody to Mr. Piel not having been recognized by licen-sor. Alabama Power Company, and being contrary to the license provision of Alabama Power Company . . . is of
no effect and cannot be binding on any of the parties or the Alabama Power Company.”

Moody’s January 21, 1976, motion for a new trial was denied on March 1, 1976, and he thereafter prosecuted this appeal.

Appellant has been represented at each of the aforementioned proceedings, as he is on this appeal, by Matthis W. Piel. The contentions of appellant upon appeal are threefold: (1) The court erred in allowing evidence to be submitted only by affidavits at the December 12, 1975, hearing. (2) The decree ordering transfer of the cabin and assignment of the license to Charla Moody was invalid in that a necessary person, i. e., Matthis W. Piel, was not made a party to the litigation. (3) Charla Moody, not being a party to or in privity with the contract between Alabama Power and appellant Moody, cannot sue for its breach; and as she is a stranger to the contract, she cannot take advantage of any breach thereof.

Before proceeding to a discussion of these issues, a preliminary matter to which both parties referred in brief should be addressed. Appellant contends that close scrutiny of the recreational site agreement between Alabama Power and himself manifests an intent of the parties that the cabin remain personal property; and, hence, the instrument set forth in footnote One, supra, is sufficient in law to transfer his interest to Piel. Appellee, however, argues that perusal of the recreational site agreement warrants finding that the appellant’s interest in the cabin is real property. Consequently, the conveyance to Piel is void since the instrument fails to comply with the statutory requirements enumerated in Code of Alabama, Tit. 47, § 22, et seq.

We make no decision with respect to the preceding. For irrespective of whether appellant’s interest in the cabin and lot is deemed personalty or realty, his conveyance of that interest without the written consent of Alabama Power violates the terms of his agreement with the latter. An assignment may be invalid as between the parties thereto if obtaining the consent of the li-censor or lessor appears to be a condition precedent to the effectiveness of the assignment. 148 A.L.R. 1361, 1365, and cases cited therein. Here, reviewing the evidence with the attendant presumption of correctness, the trial court did not err to reversal in finding the attempted conveyance from Moody to Piel invalid for failure to comply with the express terms of the recreational site agreement. Stated differently, here in this instance, compliance with the terms of the agreement may be viewed as a condition precedent to making an effective transfer.

Appellant’s first argument on appeal — that the court erred in allowing evidence to be submitted only by affidavit — is unsupported by the transcript of evidence. We quote from the transcript:

“THE COURT: Mr. Piel, do you want to offer some oral testimony about your own knowledge of—
“MR. PIEL: That’s what I have offered, I have already offered my testimony.
“THE COURT: Then I will accept it as that and accept it as sworn to as far as that is concerned.”

It is readily apparent that evidentiary matters were not limited solely to affidavits. Moreover, appellant made no objections whatsoever to the trial court in regard to presentation of evidence. It is well established in Alabama that matters not objected to in the trial below cannot be objected to for the first time on appeal. Henley v. Boswell, 55 Ala.App. 414, 316 So.2d 342. Accordingly, appellant’s first contention is without merit.

Appellant’s second argument upon appeal is based on unique circumstances. Moody, through his attorney Piel, contends that appellee’s failure to join Piel as a party defendant to the April 1, 1974, divorce proceeding invalidates that portion of the decree ordering him to transfer his interest in the lake lot and cabin to appellee. The basic principle underlying this joinder argument is that a court should not adjudicate an individual’s rights in his absence and without giving him the opportunity to be heard. Calcote v. Texas Pac. Coal & Oil Co., 5 Cir., 157 F.2d 216, cert. den. 329 U.S. 782, 67 S.Ct. 205, 91 L.Ed. 671.

However, in the instant case the mandates upon which the joinder requirement is predicated have been fulfilled. Here, Piel cannot claim lack of notice with respect to the disposition of the claimed interest in the cabin. He has represented appellant Moody throughout the proceedings below. Nor can he claim that he has not been heard. Indeed, he was physically present at the two principal hearings (June 4, 1974, and December 12, 1975) in which matters pertinent to a determination of proper title to the cabin and lot were heard. Moreover, Piel himself gave testimony at the December 12, 1975, hearing. A close examination of Rule 19, ARCP, implies that a person should be joined as a party, in the first instance, if he is absent and, further, that the failure to so join is prejudicial to such person. In this instance, Piel was not absent within the contemplation of the rule and to this court was not prejudiced by the failure to be added as a party.

According to Moore, IB Moore’s Federal Practice § 0.411(6) 2nd Ed. (1974) at 1552:

“If a non-party who thus participates in litigation has an interest sufficiently close to the matter in litigation, and has adequate opportunity to litigate in support of or in defense against the cause of action on which the suit is based, the policies . . require that the participating non-party should be bound by the resulting judgment to the same extent as though he were a party to the action. . . . ”

Thus, the fact that one has not been technically joined as a party of record does not preclude his being bound by a judgment, if he had a sufficient interest in the suit and participated in and controlled the litigation. Southern Motors Corp. v. Gayle Motor Co., 207 Ala. 358, 92 So. 784; White Hall Bldg. Corp. v. Profexray Div. of Litton Industries, D.C., 387 F.Supp. 1202; Esco Corp. v. Tru-Rol Company, Inc., D.C., 352 F.Supp. 416, aff’d 4 Cir., 489 F.2d 699.

If one need not be joined as a party to be bound by the judgment, it necessarily follows that the proceeding rendering that judgment is not invalid and need not be set aside for non joinder where the interested person was present, gave testimony, and exerted substantial control over the litigation.

Appellant’s third contention is likewise without merit. It is true in Alabama as a general principle of law that a stranger to a contract cannot sue for its breach. Twine v. Liberty National Life Insurance Co., 294 Ala. 43, 311 So.2d 299; Watson v. Mills, 275 Ala. 176, 153 So.2d 612. Here, however, appellee does not institute this action as a suit for breach of contract. Rather, the matter arises incident to a divorce proceeding in which the court has jurisdiction over both parties. It is an established maxim that equity, having assumed jurisdiction upon invocation of the parties, will determine all the interrelated equities of the whole. Owens v. Owens, 281 Ala. 239, 201 So.2d 396.

Thus, appellee is neither suing for breach of the contract, nor is she seeking to take advantage of the breach of a condition therein. Rather, it is the court in the necessary exercise of its power in determining the property rights of the parties before it which is relying upon a breach of the contract.

In reaching this decision we do not seek to reverse or ignore the general tenets enumerated in Twine and Watson, supra. This holding must be limited to the specific facts herein. Where parties have properly invoked the jurisdiction of the court in a divorce proceeding, the court will not be precluded from adjudicating their respective property rights on the ground that doing so requires interpretation of a contract between one of the parties to a divorce proceeding and a third party, where that third party’s interests are not adversely affected.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.

      . The conveying instrument was properly notarized and, in addition to Moody’s signature, contained the following:
      “KNOW ALL MEN BY THESE PRESENTS: That I, Stewart C. Moody, for and in consideration of the sum of One Hundred and NO/100 Dollars, and other valuable considerations in hand paid, the receipt whereon is hereby acknowledged, do hereby GRANT, BARGAIN, SELL, CONVEY AND DELIVER to Matthis W. Piel all property of every kind and description located on the following described property: The full consideration is $1,500.00
      “Lot No. 216 Lake Martin
      “WARRANTED free and clear of all encumbrances.”


text:
    In re Stewart Claude MOODY v. Charla Joyce Johnson MOODY. Ex parte Stewart Claude Moody.
    SC 2090.
    Supreme Court of Alabama.
    Dec. 3, 1976.
    Matthis W. Piel, Montgomery, for petitioner.
    None for respondent.
   SHORES, Justice.

Petition of Stewart Claude Moody for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Moody v. Moody, 339 So.2d 1030.

WRIT DENIED.

HEFLIN, C. J., and MADDOX, FAULKNER and BEATTY, JJ., concur.