author: BLOODWORTH, Justice.

text:
    Margie W. WILKINSON v. Terry DUNCAN et al.
    SC 1317.
    Supreme Court of Alabama.
    Sept. 4, 1975.

      Jackson & Sikes and Allen B. Edwards, Jr., Selma, for appellant.
    Sterling G. Culpepper, Jr., Montgomery, for appellees.
   BLOODWORTH, Justice.

Margie Wilkinson sought the probate of the alleged will of her deceased husband, Marvin Wilkinson. Mr. Wilkinson’s children filed a contest of the will on the grounds of undue influence and lack of testamentary capacity. A jury rendered a verdict in favor of the contestants, the children, and judgment was entered thereon. The proponent, the widow Margie Wilkinson, appeals.

Although there are numerous assignments of error, only three are argued in appellant’s brief. Those assignments of error which are not argued are considered waived. Supreme Court Rule 9; Lowery v. Stinson, 291 Ala. 415, 417, 282 So.2d 244, 246 (1973).

Appellant first contends that the trial court committed reversible error in overruling appellant’s objection to certain testimony offered by appellee’s witness, Dr. Lee. The alleged error arose in the following context, viz:

“BY MR. THAGARD:
“Q Dr. Lee, when Mr. Azar questioned you about making a Will for the first wife?
“A Do you want to see it ?
“Q I’ll be happy to see it, sir. Yes, sir, you have several notations here, January or February of 1970, what do you have those notations for?
“A Well, on that day he wouldn’t have been able to sing or make a Will.
“BY MR. AZAR: We object to that. That’s not the date of the Will.
“BY THE COURT: Overruled.”

The appellant’s objection came too late because it was made after the question had been answered. Madison Highlands Development Company v. Hall, 283 Ala. 333, 216 So.2d 724 (1968). Even if it may be contended that the question did not call for inadmissible testimony but elicited an inadmissible answer, nevertheless, the appellant should have responded by making a motion to exclude the answer. Willingham v. State, 261 Ala. 454, 74 So.2d 241 (1954).

Appellant, nevertheless, strenuously contends that Dr. Lee’s testimony invaded the province of the jury since the very issue of testamentary capacity is a question of fact reserved for determination by the jury.

The general rule, as stated in our cases, is that “a witness, whether expert or not, cannot testify that the testator was or was not capable of making a will, because, as it is said, this is the very issue to be submitted to the jury.” [Our emphasis.] Councill v. Mayhem, 172 Ala. 295, 306, 55 So. 314, 317 (1911).

However, in the instant case prior to the introduction of the challenged testimony by Dr. Lee, counsel for appellant had already elicited direct testimony from appellant’s own witness, as follows: “Would you tell this jury whether or not in your opinion, Mr. Wilkinson had such legal testamentary capacity to be able to execute a will, a will on November 20, 1972 when he signed this will?” [Our emphasis.] The witness responded: “He did, and there is absolutely no question in my mind that’s so.”

The introduction of such illegal testimony by appellant’s own witness opened the door.to rebuttal by appellee through introduction of the evidence here in question, although the prior evidence had not been objected to. Cunningham v. Lowery, 45 Ala.App. 700, 236 So.2d 709 (1970).

Furthermore, the issue before the jury was whether the deceased had testamentary capacity on the date that the contested will was executed, November 20, 1972. The deceased’s testamentary capacity on any other date was not the ultimate question to be decided by the jury.

Appellant’s second assignment of error is that the court improperly allowed in evidence prejudicial testimony concerning the character of the appellant. This testimony arose during the examination of Mrs. Stinson, sister of the testator, viz:

“Q Did he [testator] say anything about having found his wife [proponent] with another man ?
“A Yes, he said that the night before he found—
“BY MR. AZAR: We object to this, Your Honor. It’s not even closely related to the time of the execution of the Will, and the statement made was not part of the res justa [sic], and was not made contemporaneous with the execution of the Will, and we object.
“BY THE COURT: Overruled.
“BY MR. THAGARD: Well, the question was whether or not he told her anything about finding his wife with another man?
“BY MR. HARTLEY: And we object, there’s no relevancy to this, it has nothing to do with this Will contest. That’s not a statement showing the man’s mental condition.
“BY THE COURT: I think that any conversation that this man had during his lifetime, is relevant to his mental condition.
“BY MR. THAGARD:
“A. He caught his wife with another man, and had beat hell out of him.”

Reversible error is not made to appear herein. Even if we assume there was error in overruling the objection, it was harmless error. Supreme Court Rule 45.

The jury had already been permitted to hear without objection that the appellant had been seeing another man and that she and the deceased had lived together before their marriage. Appellant herself testified that she had been going with the deceased for ten years prior to their marriage, a period during which both she and he were married to third parties. We find no substantial injury to the rights of the appellant in light of the record, viewed in its entirety and, therefore, no reversible error. Bates v. Rents, 262 Ala. 681, 81 So.2d 349 (1955). Moreover, “Where [as here] a will is contested on the ground of undue influence, evidence as to the nature and relation and dealings between testator and beneficiaries is admissible.” Whitt v. Forbes, 258 Ala. 580, 64 So.2d 77 (1953).

In her third assignment of error, appellant contends that appellees were allowed to resort to an indirect means of introducing illegal evidence of testamentary capacity. Appellant argues that “[b]y allowing the [hypothetical] question posed to the witness to include the fact that Marvin G. Wilkinson executed a will on November 20, 1972, and then asking the witness his opinion of the mental condition of Marvin G. Wilkinson, Appellees were allowed to indirectly place before the jury testimony which the law would not allow them to do directly.” The allegedly improper testimony elicited by this hypothetical was :

“A Of course, it’s very difficult and hazardous to know what an individual’s mental condition is at any given time because things can change and something as variable as that can change quite quickly. But, based on all that we have said and my 'records, there was no question in my mind that he had progressive mental and emotional deterioration during this period of time. Just as one illustration besides everything else mentioned, he had divorced his wife, married a second woman whom I knew very well. This marriage lasted only a month or two.”
>{i %
“And then married for the third time, all indicating a very severe state of emotional instability. And I would believe that on the basis of all of this that we could probably say that there is a real question as to his mental competence, mental ability at the date you mentioned. But, of course, no one can give you a definite opinion.”

Had the above statement spoken to the testamentary capacity of the deceased on November 20, 1972, appellant might well contend that it constituted illegal testimony. Moreover, we have already pointed out the rule is that illegal evidence may be introduced to rebut illegal evidence already submitted by the other party. In this case, it was appellant who first introduced illegal evidence of testamentary capacity on November 20, 1972.

Miller v. Whittington, 202 Ala. 406, 80 So. 499 (1918), holds that a witness, who has had adequate opportunity to make a reasonable judgment as to the testator’s mental condition, may testify concerning the testator’s mental condition on the date of the will. The testimony in question did not exceed this permissible range of comment.

Having found that no improper answer was given in response to the hypothetical to which appellant assigns error, we need not be concerned with the form of the question. As we stated in Fowler v. Fowler, 292 Ala. 340, 342, 294 So.2d 156, 158 (1974), “a verdict cannot be reversed because of improper questions propounded to a witness unless, it response to such questions, improper evidence is elicited and admitted.”

Finding no reversible error in the assignments of error argued, the judgment of the trial court is due to be affirmed.

Affirmed.

FAULKNER, ALMON and EMBRY, JJ., concur.

HEFLIN, C. J., concurs in the result.


source: Caselaw Access Project

license: Public Domain

text:
    Bill ADAMS, as guardian of Sam Adams, a non compos mentis, et al. v. Sam ADAMS, who sues by his next friend and sister, Viola Haynes.
    SC 1308.
    Supreme Court of Alabama.
    Sept. 4, 1975.
    Taylor & Taylor, Russellville, for appellants.
    Bedford & Bedford, Russellville, James & Lowe, Haleyville, for appellee.
   BLOODWORTH, Justice.

Appeal by guardian and others from judgment and jury verdict finding Sam Adams to be of sound mind. Affirmed.

Heretofore, on June 29, 1973, a jury in Franklin County Probate Court found Sam Adams’ to be a person of unsound mind, and his brother Bill Adams was appointed guardian. A decree was subsequently entered setting aside a deed Sam Adams had executed to a 328-acre tract of land which he had previously agreed to sell for $50,000. The purchase price was repaid.

A year or so later, the guardian obtained a sale of the same lands for $82,500 and petitioned the court to approve the sale. Sam Adams then filed a petition by a sister as next friend to revoke the letters of guardianship. A trial was held before a jury at which various witnesses testified, lay and medical, including Sam Adams himself. The jury decided the issues in favor of Sam Adams, finding him to be of sound mind. Judgment was entered accordingly. The guardian and certain brothers and sisters have appealed.

It is contended on this appeal that the verdict is contrary to the weight of the evidence and that there is insufficient evidence to support the jury’s verdict and the court’s judgment.

We have read the entire record in this case. There is evidence on both sides bearing upon the issue as to whether there has been a change in the mental status of Sam Adams from the time of the former trial when the jury determined, and the court, declared, him to be of unsound mind.

Sam Adams is now 80 years of age. It appears he had suffered a stroke prior to the former inquisition hearing at which he was found to be of unsound mind. There is evidence in the record, which if believed by the jury, shows that Sam Adams has recovered from the effects of the stroke to the extent that he is considered by witnesses to be of sound mind at the time of the second trial.

Much of the evidence is in conflict. The case was properly submitted to the jury. The jury’s verdict is presumed correct. Roberson v. Roberson, 284 Ala. 5, 221 So.2d 122 (1969). It is the jury’s province to decide from the evidence the truth of a disputed fact.

In view of the result we reach, we need not rule on the appellee’s motion to dismiss the appeal.

Affirmed.

HEFLIN, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: HEFLIN, Chief Justice.

text:
    MITCHELL HOMES, INC., et al. v. William Wayne TEW and Voncile A. Tew.
    SC 707.
    Supreme Court of Alabama.
    Sept. 4, 1975.

      Benjamin H. Kilborn, Mobile, for appellants.
    Geary A. Gaston, Mobile, for appellees.
   HEFLIN, Chief Justice.

Appellants-defendants Mitchell Homes, Inc., and Gulf Coast Building and Supply Company of the Southeast, Inc. (defendants) appeal from a judgment rendered against them and for the appellees-plain-tiffs William Wayne Tew and Voncile A. Tew (plaintiffs). That judgment is reversed.

The plaintiffs bought a new home in Prichard from the defendants on April 16, 1971 for the purchase price of $20,900.00. Testimony at trial indicated that from the beginning the plaintiffs began to notice small things wrong with the house. Although the defendants insist that earnest efforts were made to correct these problems, Mrs. Tew said they “only pretended” to fix them. In any event, she was never satisfied.

The main problem involved the floor tile, which soon began cracking, fading, and wearing thin. The plaintiffs and defendants argued long about this problem. The plaintiffs maintained the tile was defective; the defendants argued the problem was caused by excessive wear and poor care. Finally, the defendants suggested that Mrs. Tew write to the Veterans Administration (which had insured the Tews’ loan) about the tile. She did, and a VA inspector recommended replacing the tile with tile of a comparable grade. Mrs. Tew and the defendants never agreed on the replacement tile. She finally asked for carpet, offering to pay the increased price difference, however, no agreement was ever reached on this negotiation effort.

Complaints included chipped cabinet tops, split window sills, faulty sheetrock, warped doors, carpeting pulling away from the walls in places, and many other things. While many defects were mentioned in the complaint filed in court, and while many defects were listed by the plaintiffs in response to specific interrogatories by the defendants, no mention was made until trial of what appear to be the most serious of all the defects, a three-inch gap in the decking at the roof peak and an allegedly defective foundation. Evidence as to these two defects was presented at trial over defense counsel’s strong and numerous objections.

The plaintiffs filed this suit charging defendants with breach of warranty and fraud in the sale of the house. The alleged fraud consisted of alleged misrepresentations by agents of the defendants to the effect that the house was “a good house” and “a good buy” and was constructed of good material by first-class workmen. The trial judge submitted the case to the jury on the theories of breach of warranty and fraud. The jury awarded the plaintiffs $35,000. Obviously this amount included punitive damages since the highest estimate of actual damages (given by the plaintiffs’ expert witness) was between $18,000 and $19,000.

The defendants raised the statute of limitations of one year in their Plea No. 3. The plaintiffs purchased the house on April 16, 1971, but did not file suit until November 17, 1972, some 19 months after the sale. The plaintiffs filed a motion for a directed verdict as to Plea No. 3 and the trial judge granted that motion without explaining his reason for doing so. The defendants on this appeal assign as error the granting of that directed verdict.

Alabama has a 1-year statute of limitations in fraud actions, Title 7, § 26, Code of Alabama of 1940, as amended (Recompiled 1958). However, Title 7, § 42 extends the time for bringing suit in certain instances. That section provides:

“In actions seeking relief on the ground of fraud where the statute has created a bar, the cause of action must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have one year within which to prosecute his suit.”

Plaintiffs contend that the facts of the case fit within “the saving clause” of Title 7, § 42 so as to give them one year from the time they discovered the fraud to bring the suit. However, in this case the question of when the fraud was discovered is one for the jury. In Loch Ridge Construction Company, Inc. v. Barra, 291 Ala. 312, 280 So.2d 745 (1973), this court stated :

“Where there is evidence reasonably affording an inference as to whether a plaintiff was defrauded, and if so, when the plaintiff discovered the fraud, the case is one for the trier of fact. Letson v. Mutual Loan Society, 208 Ala. 285, 94 So. 288. In Birmingham Bond Co. v. Lovell, 5 Cir., 81 F.2d 590, it is stated:
‘The province of the jury [is] to resolve the conflict in the evidence and to determine whether, on all the evidence, the statute of limitations created a bar to the suit.’ ”

In Letson v. Mutual Loan Society, 208 Ala. 285, 94 So. 288 (1922), this court considered a statute of limitations problem and stated:

“ * * * A careful consideration of the evidence convinces us that the case should have been submitted to the jury on the facts as to whether or not plaintiff was defrauded, and if so, when he discovered that fraud. * * * ” (Emphasis added.)

Without a discussion of the evidence presented in this case, it can be said that there was certainly evidence from which the jury could have found the plaintiffs discovered the fraud more than a year before bringing suit. The question of the discovery date should have been submitted to the jury. Thus it was error to grant the directed verdict on Plea No. 3.

The plaintiffs further contend that Title 7, § 23(1), Code of Alabama, 1940, as amended (Recompiled 1958 — 1973 Cumulative Supp.), is the applicable statute pertaining to statute of limitations in this case rather than Title 7, § 26. If this contention is correct then there would be a 4-year statute of limitation instead of a 1-year period for fraud cases involving improvements to real property.

This court dealt with Title 7, § 23(1), in the case of Bagby Elevator and Electric Company, Inc. v. McBride, 292 Ala. 191, 291 So.2d 306 (1974). In that case this court held unconstitutional a clause providing an absolute bar on suits after seven years. In the more recent case of Plant v. Reid, Ala., 313 So.2d 518 (1975), this court held unconstitutional, at least for certain purposes, the four-year provision of Title 7, § 23(1). The effect of those cases on that section, however, need not be considered here because this court finds that the present action does not fit within the wording of that section. Title 7, § 23(1) related to actions “for damages arising out of any act or omission * * * in the design, planning, supervision or construction of * * * improvements” on real property. (Emphasis added.) These words do not at all indicate that the legislature intended to create a four-year statute of limitations for suits based on fraud in the sale of improvements on real property; therefore, the plaintiffs are mistaken in their contention that Title 7, § 23(1) is applicable in this case.

In this appeal the defendants argue many other assignments of error but it is not necessary to discuss these other problems since they are not likely to arise on a new trial.

Reversed and remanded.

BLOODWORTH, FAULKNER, AL-MON and EMBRY, JJ., concur.


author: JONES, Justice.

text:
    CONSOLIDATED FOODS CORPORATION, a corp. v. The WATER WORKS AND SANITARY SEWER BOARD OF the CITY OF MONTGOMERY, a corp.
    SC 1193.
    Supreme Court of Alabama.
    Sept. 25, 1975.

      Whitesell, Gordon & Gallion, Montgomery, for appellant.
    Robert B. Stewart, Montgomery, for ap-pellee.
   JONES, Justice.

This is an appeal from the Circuit Court of Montgomery County from a ruling denying Consolidated Foods Corporation either injunctive relief or damages for a sewer line built across its property by the Water Works and Sanitary Sewer Board of Montgomery. We affirm.

By the late 1960’s, the nationwide crusade to improve the environment and preserve our natural resources had reached Alabama. Federal agencies imposed deadlines against dumping industrial wastes into navigable rivers, and local sewer boards adopted plans to implement waste treatment.

In Montgomery, an area of great concern was the Alabama River. In an effort to divert sewage from the Alabama River to a waste treatment center, the Water Works and Sanitary Sewer Board of Montgomery planned to construct a new thirty-inch sewer main along the industrial shore of the river to collect raw sewage discharged from the industries. Since the proposed sewer main crossed privately owned property, pipeline easements were necessary before the project could begin. The acquisition and interpretation of one of these easements is the subject of this appeal.

On April 12, 1970, Consolidated Foods Corporation granted to the Water Works and Sanitary Sewer Board “an easement for the purpose of installing and maintaining under the ground a sanitary sewer in, upon, along and across” certain described property fronting the Alabama River in Montgomery. The Board paid Consolidated $5 in consideration for this grant, and agreed to connect Consolidated’s lateral sewer line with the main line. Prior to this time, Consolidated’s plant had been discharging its sewage directly into the Alabama River and evidence indicated that it would have cost $50,000 to build a private waste treatment plant sufficient to comply with federal pollution standards.

The Board constructed the line between November, 1970, and January, 1972. The portion of the line built across the Consolidated easement was set on pilings above the ground rather than “under the ground” as indicated by the grant.

At approximately the same time, the United States government was planning construction for Jones Lock and Dam to raise the water level of the Alabama River.

In January, 1970, three months before its grant to the Board, Consolidated granted a flowage easement to the Corps of Engineers. When the dam was completed and the land was flooded, a slough developed in Consolidated’s new shore line. The Board’s sewer line lies above the new water level, runs between the slough and the main body of the river, and, as a result, completely cuts off water access to the riparian property of Consolidated.

Consolidated did not object to the elevation of the pipeline throughout the one-year construction period and for a year and one half after completion. It finally did object in June, 1973, at which time it was negotiating with O. G. Pinkston of Montgomery for sale of the property. Pinkston is a real estate appraiser and speculator in Montgomery. He planned to purchase the waterfront property from Consolidated and resell it at a profit. Ultimately, he entered into two contracts of sale with Consolidated. He was fully aware of the sewer line when he negotiated these contracts. The first contract, dated December 8, 1972, was for $100,000. Between that date and the negotiation of the second contract, Consolidated filed an action to declare good title against the Board and for specific performance against Pinkston. This suit was dropped as a result of the renegotiation, and a second contract was entered for $72,000. The latter contract provided that Pinkston had the right to maintain a suit in the name of Consolidated to demand either removal of the above ground sewer main or damages for the reduced value of the waterfront property. The contract further provided that Consolidated would transfer any benefit it obtained from the litigation to Pink-ston, but regardless of the outcome of the litigation, Pinkston was required to purchase the property for the full price of $72,000. The law suit before us was initiated by Pinkston, in the name of Consolidated, pursuant to that contract.

Consolidated Foods is a Chicago corporation. It has a division called Hollywood Brands which operates the plant in Montgomery affected by the sewage easement. Prior to Consolidated’s approval of the sewage easement, officers of Hollywood Brands met in Montgomery with representatives of the Board and the Board’s engineering company. At that meeting, the engineering company displayed plans for a sewer line which clearly indicated that the pipe was to be built above the ground. The agents of Hollywood saw these plans but told the Board that the plans would have to be forwarded to the Chicago office for approval. The drawings which were actually sent to Chicago did not indicate that the line was to be constructed on pilings above the water, but a letter which accompanied the plans and the unexecuted easement stated that the ‘ proposed sanitary sewer main will be at an elevation of 126 feet or at the edge of the water when Jones Lock and Dam is completed.” The normal water level is 125 feet.

After the construction was completed and during its negotiations with Pinkston, Consolidated consulted the Board about relocating the sewer line. The Board proposed two alternatives and submittted cost estimates in June, 1973. The first proposal —to relocate the main underground — cost an estimated $450,000. The second proposal- — to install an inverted siphon in the slough — cost between $225,000 and $250,-000. It was acknowledged that these figures would be substantially higher today. There was also expert testimony that the sewer line reduced the market value of the riparian property from $137,000 to $60,000. The expert based his analysis upon the assumption that the best use for the property is warehousing. Without the sewer line, the property has convenient access to a railroad, an interstate highway, and the river. But with the sewer line between the slough and the main river, water access is completely eliminated.

The trial Judge based his denial of relief on three grounds. First, he found that the granting language, “installing and maintaining under the ground a sanitary sewer in, upon, along and across” the property, is ambiguous; therefore, he looked to extrinsic evidence such as the accompanying letter and plans and the conduct of the parties to interpret the grant. Second, he found that both laches and estoppel barred Consolidated. Third, he found that the equities were balanced.

We disagree with the trial Court’s first finding that the grant is ambiguous. The basic rule of construction is premised on the principle that, absent the issue of prescription or adverse possession, an easement can be created only by a deed of conveyance. Camp v. Milam, 291 Ala. 12, 277 So.2d 95 (1973).

We look, therefore, to the written instrument to determine the scope of the grant. The language “in, upon, along and across” is not inconsistent with “under the ground.” The former is only the prepositional litany denoting a right of access. It is general language granting the Board a right of ingress and egress across Consolidated’s property. City of Elisabethtown v. Caswell, 261 S.W.2d 424 (Ky.App.1953); Commonwealth v. Warwick, 185 Pa. 623, 40 A. 93 (1898).

It is not necessary, however, to find an ambiguity in the grant before extrinsic circumstances become material. They are material to the trial Judge’s finding of es-toppel. We agree that Consolidated is es-topped. The problem of when a litigant is estopped to assert his rights can never be answered with precision. The traditional elements of estoppel can only be meaningful in the context of individual fact situations.

The fundamental issue here is when did Consolidated learn that the Board intended to build the sewer line above the ground. In planning meetings at Hollywood’s Montgomery office, the Board clearly explained the elevation of the line. Even assuming that this knowledge cannot be imputed to Consolidated, the letter accompanying the unexecuted easement gave the elevation of the sewer line and stated that it would be located at the water’s edge when Jones Lock and Dam was completed.

This is not to say that the terms of the letter, or the letter combined with other extrinsic circumstances, effected any change in the scope of the grant clearly expressed in the deed of conveyance. It did operate, however, along with other circumstances, to put Consolidated on notice of the true location of the sewer line.

Consolidated’s notice at the time of the grant, its acquiescence through the construction period, and its continued silence for one and one half years after the pipeline’s completion strengthened the trial Judge’s finding of estoppel. In fact, Consolidated did not object to the elevation of the pipes until Pinkston questioned it during his negotiations to purchase the property. Even in this law suit, Consolidated is not concerned with the pipeline’s elevation since it has already contracted away its right to any benefit derived from the litigation.

Consolidated argues that mere silence as to rights of record does not give rise to es-toppel. We need not decide whether that principle should be applied to the problem of diverging interpretations of easement language between the grantor and grantee, because this case presents additional elements of estoppel.

The first of these elements is Consolidated’s permitting the Board to spend large sums of money to construct the pipeline on pilings above the water. An analogy to railroad easement cases provides the best Alabama authority in this area. Those earlier cases held that a landowner who allowed the railroad to construct tracks across his land under a colorable claim of right was estopped from evicting the railroad or interfering with its easement to operate trains. Hendrix v. Southern Railroad Company, 130 Ala. 205, 30 So. 596 (1900); Cowan v. Southern Railroad Company, 118 Ala. 554, 23 So. 754 (1897).

The large expenditures plus the public benefit accruing from track construction motivated this Court to favor the railroads in the face of legally valid claims of landowners. In the midst of our ecological crisis, a sewage easement in 1975 is as vital to the public welfare as a railroad easement was to the rapidly developing commercial society of the 1890s.

These considerations are indeed pertinent to the difficult judicial exercise of drawing lines within such an amorphous region of our law as equitable estoppel.

In addition to permitting the Board to expend the money, Consolidated accepted benefit from the sewer construction by connecting its own sewer discharge to the line. An owner’s acquiescence in his grantee’s construction of a contract while accepting benefits under that contract has been recognized as a ground of estoppel in Alabama. McGowin v. Cobb, 249 Ala. 561, 32 So.2d 36 (1947).

Thus, the duration of Consolidated’s knowledge of the above ground construction, the expense incurred by the Board, and the benefit accepted by Consolidated, while if individually considered may have been unpersuasive, combine in this case to compel the conclusion that Consolidated is estopped from asserting its claim against the Board.

The trial Judge’s third finding that the equities are balanced is also correct. This finding is supported by several facts. The sewer main was built in the public interest. A substantial portion of the benefit from it accrued to Consolidated, which would otherwise have been obligated to construct a private waste treatment mechanism. It is apparent from Consolidated’s acquiescence that it was not concerned with the elevation of the line. The line did not interfere with its use of the property for a manufacturing plant. Only when the property was transferred to Pinkston, who proposed a different use, did the above ground location create a problem. Pinkston has already received compensation in the form of a reduced purchase price.' He now comes to this Court, in the name of Consolidated, to prosecute a claim which Consolidated itself never chose to assert during the three years the pipeline abutted its property. To require the Board to remove the line or further compensate Pinkston for an encroachment he knew of when he bought the property, is against the public interest.

For the reasons stated, we will not disturb the trial Court’s holding.

Affirmed.

HEFLIN, C. J., and MERRILL, MADDOX and SHORES, JJ., concur.


author: MADDOX, Justice.

text:
    Floyie WILHOITE and Elnora N. Wilhoite v. Leroy NELSON and Florence Nelson.
    SC 1353.
    Supreme Court of Alabama.
    Sept. 25, 1975.

      Sherman B. Powell, Decatur, for appellants.
    Julian Harris, Decatur, for appellees.
   MADDOX, Justice.

The legal question presented is whether a letter containing an offer to convey to promisee one-half of everything the promi-sor receives by way of inheritance can be specifically enforced.

Plaintiffs are husband and wife. Defendants are husband and wife. Plaintiff wife is the sister of the defendant husband. The subject property was inherited by defendant husband from one Molly Terry, the aunt of plaintiff wife and defendant husband. Plaintiffs claim a one-half interest in all of this property on the basis of an alleged agreement contained in a letter, allegedly written by defendant wife in 1956, and also on the basis of an oral agreement, allegedly made by all of the parties. The letter provided, generally, that if the plaintiffs would move back from Chicago to Alabama, to take care of Molly Terry, defendants would help them build a house and would give them one-half of whatever they got from Molly Terry. The plaintiffs also agreed that they would give defendants one-half of whatever they got from Molly Terry.

It is undisputed that the plaintiffs moved back to Alabama, built a house on Molly Terry’s land, next to her, and took care of her. The length of time they cared for her is in dispute. Some evidence indicates that it was for six or seven years. Other evidence indicates that it was for four or five years. Molly Terry was an invalid the last two years of her life.

Plaintiffs maintain that the letter allegedly written by the defendant wife on behalf of herself and her husband was sufficient upon which the court could order specific performance. The plaintiffs also claim that the oral agreement was enforceable.

Defendant husband denied authorizing his wife to write the letter for him. He also denied entering into an oral agreement. Defendant wife also denied that she sent any letter to the plaintiff to that effect, and also denied the existence of any oral agreement. The trial judge found for the defendants. His final decree, in part, reads as follows:

“ * * * The Court is of the opinion that the statute of frauds applies and further that there is insufficient evidence to establish a trust based on fraud. As pointed out in the defendants’ brief Manning v. Manning, [Pippen] 95 Ala. 537, 11 So. 46, [56] sets the standard in holding that a mere promise and the breach of that promise is not sufficient to create a trust. There must be some evidence of fraud other than the breach of the promise. It is, therefore, considered, ordered and adjudged that the plaintiffs take nothing and the cause be, and hereby is, dismissed.”

Before discussing the merits of the appeal, we address first a procedural point raised by the appellees. They say that the appellants have appealed from the trial court’s judgment overruling their motion for a new trial, and since this was a case formerly cognizable in equity, the cause should be affirmed because the appellants have made no assignments of error with respect to the final decree, but only as to the motion for a new trial.

This cause was originally filed after the effective date of the Alabama Rules of Civil Procedure. Plaintiffs filed a motion for new trial pursuant to Rule 59, ARCP. Admittedly, under former practice, a decree or order denying an application for rehearing in equity which did not modify the original decree would not support an appeal. Former Equity Rule 62; Whiteport v. Whiteport, 283 Ala. 704, 220 So.2d 891 (1969). The Alabama Equity Rules have been superseded by the Alabama Rules of Civil Procedure. See Appendix II, Alabama Rules of Court, 1975, p. 296. While the validity of the Appendix can be challenged, this Court said, when it promulgated the Rules, that “ * * * Appendix II, Statutes and Rules Superseded, shall be viewed with a presumption of validity.” Order, January 3, 1973; Alabama Rules of Court, 1975, p. XX.

In view of what we have said, appellants’ assignments of error which claim that the trial court erred in overruling their motion for new trial will be reviewed. Former Equity Rule 62 has been superseded.

We only discuss that portion of the court’s decree determining that the Statute of Frauds applied, because this was the only issue which appellants substantially argue on appeal.

There was sufficient evidence before the trial court from which the court could have determined that the agreement could not be specifically enforced because: (1) the description of the land to be conveyed was insufficient. Cf. Goodwyn v. Jones, 288 Ala. 71, 257 So.2d 320 (1971); (2) the wife’s signature was insufficient to bind her husband because she was not authorized in writing to be the agent of her husband. See Title 20, § 3, Code of Alabama 1940, (Recompiled 1958); (3) the alleged oral agreement was insufficient in that the promisors neither had title nor possession when the promisees were put in possession of the land. See Title 20, § 3(5), Code of Alabama 1940, (Recompiled 1958); Formby v. Williams, 203 Ala. 14, 81 So. 682 (1919).

We find that there was sufficient evidence upon which the trial court could have determined that the alleged agreements failed to comply with the Statute of Frauds. The judgment is due to be affirmed.

Affirmed.

HEFLIN, C. J., and MERRILL, JONES and SHORES, J J., concur.


author: MERRILL, Justice.

text:
    Joe BARKSDALE et al. v. Rita Jan Gray PENDERGRASS.
    SC 1310.
    Supreme Court of Alabama.
    Sept. 25, 1975.

      Beck & Beck, Fort Payne, for appellants.
    Charles M. Scott, Fort Payne, for appel-lee.
   MERRILL, Justice.

Mrs. Mamie C. Henry, a widow, died on October 18, 1972. She had no children, but was survived by a number of nieces and nephews.

No duly executed will was found and Joe Barksdale, a nephew of Mrs. Henry, was appointed administrator of her estate.

Later, Rita Jan Pendergrass, formerly Rita Jan Gray, filed a petition in the Probate Court of DeKalb County to probate an alleged lost or destroyed will of Mamie C. Henry. A copy of the will was made an exhibit to the petition. According to its terms, Mrs. Henry left all of her property to Rita Jan Gray and appointed her as executrix.

Joe Barksdale and Olen Barksdale filed a contest and the case was transferred to the circuit court, where it was tried before a jury. The grounds of the contest were that the purported will was never duly executed, or, that if executed, was destroyed by Mrs. Henry prior to her death.

The jury found in favor of the proponent, Rita Jan Gray Pendergrass. Judgment was entered ordering the will admitted to probate. A motion for new trial was denied and the Barksdales appealed.

In a proceeding to probate an alleged lost or destroyed will, the burden is on the proponent to establish, to the reasonable satisfaction of the judge or jury trying the facts:

(1) The existence of a will—an instrument in writing, signed by the testator or some person in his presence, and by his direction, and attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator. Tit. 61, § 24, Code 1940; Lovell v. Lovell, 270 Ala. 720, 121 So.2d 901; Jordan v. Ringstaff, 212 Ala. 414, 102 So. 895;

(2) The loss or destruction of the instrument. Brunson v. Brunson, 278 Ala. 131, 176 So.2d 490; Lovell v. Lovell, supra; Jordan v. Ringstaff, supra;

(3) The nonrevocation of the instrument by the testator. Lovell v. Lovell, supra; Jaques v. Horton, 76 Ala. 238;

(4) The contents of the will in substance and effect. Lovell v. Lovell, supra; Jordan v. Ringstaff, supra.

The first question then is whether there was a validly executed will. It is not necessary that the attestation be at the personal request of the testator. It is sufficient if done in testator’s presence with his knowledge and consent expressed or implied. Fulks v. Green, 246 Ala. 392, 20 So.2d 787; Ritchey v. Jones, 210 Ala. 204, 97 So. 736.

The testator does not have to tell the subscribing witnesses that the instrument is his will, or to inform them of its contents. Fulks v. Green, supra; Massey v. Reynolds, 213 Ala. 178, 104 So. 494.

It is not necessary for the witnesses to actually see the testator sign his name. Ritchey v. Jones, supra; Woodruff v. Hundley, 127 Ala. 640, 29 So. 98. The testator may acknowledge to the subscribing witnesses that it is his signature on the instrument by his express words or by implication from his conduct and from the surrounding circumstances. Fulks v. Green, supra; Stuck v. Howard, 213 Ala. 184, 104 So. 500.

Assignments of Error 31, 33, 34 and 35 are that the trial court erred in overruling appellants’ motion for new trial. Appellants argue the ground of the motion that the verdict was not sustained by the great preponderance of the evidence.

The evidence produced at trial showed that Charles M. Scott, a Ft. Payne attorney, prepared a will for Mrs. Henry in November of 1963. She did not execute the will in Scott’s office because she wanted to “get her own witnesses” in Collins-ville where she lived. Scott subsequently made several minor changes in the will and mailed her a final version in January of 1964. Rita Jan Gray was named as beneficiary in every version of the will.

The evidence also showed that sometime around 1964, Bill Cook, Jack Farmer and Cecil Sharp met at Sharp’s funeral home and witnessed Mrs. Henry’s signature on a document. The testimony adduced at trial indicated that there was some doubt as to whether each of the witnesses knew that the document was a will. Jack Farmer was deceased at the time of the trial. Witness Bill Cook thought that Mrs. Henry mentioned that the document was a will at some time, but Cecil sharp could only say that Mrs. Henry wanted him to witness a signature. Nevertheless, it is apparent that the requirements of Tit. 61, § 24, supra, were met since both Cook and Sharp witnessed a signature which Mrs. Plenry acknowledged as her own.

The second thing which the proponent must prove is the loss or destruction of the instrument. Billy McDowell, who rented an apartment from Mrs. Henry between 1967 and 1969, testified that Mrs. Plenry showed him a will; that she said Charles M. Scott prepared it; that Cecil Sharp’s name was on the will as a witness, and that Rita Jan Gray was the sole beneficiary. He also said that Mrs. Henry kept the will in a purse under a mattress in a spare room. Floyd Gray, the father of the beneficiary, testified that he saw one of Mrs. Henry’s nephews at her house shortly after her death. Willard Reaves, an employee of the funeral home, testified that several of Mrs. Henry’s relatives visited her house that day after she died. There was also an abundance of testimony that the will might have been lost or destroyed by accident. Finally, attorney Scott testified that several weeks after Mrs. Henry’s death he searched the house himself. Proponent Rita Jan Gray Pendergrass subsequently filed an application to compel production of the will. Appellants Barksdale responded “That the said purported will, if executed, has been destroyed prior to the death of the Testatrix, and was not found in her possession nor among has [sic] effects at the time of her death, and is presumed, if ever executed, to have been destroyed in accordance with law.”

The third element of proof involved the presumption of revocation. When the will is shown to have been in the possession of the testator, and is not found at his death, the presumption arises that he destroyed it for the purpose of revocation; but the presumption may be rebutted, and the burden of rebutting it is on the proponent. Lovell v. Lovell, supra; Jaques v. Horton, supra.

Billy McDowell, attorney Scott, and Mildred Johnson, a former neighbor of Mrs. Henry, testified that Mrs. Henry said that she did not want her nieces and nephews to have anything she had; that she had always made it abundantly clear that she wanted to select somebody other than her nieces and nephews; that she was afraid they were going to get her property; that she knew that her nieces and nephews would get her property if she died intestate; that she wanted Rita to have it, and that this was her fixed opinion.

Finally, proponent offered the copy of the will in evidence as proof of its contents.

A jury question was adequately presented under the authorities cited supra, and the jury found for the proponent.

The refusal of the trial judge to grant a new trial on the ground that the verdict is contrary to the weight of the evidence will not be reversed unless, after allowing all reasonable presumptions as to its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court reviewing the cause on appeal that it is wrong and unjust. Alabama Great Southern Railroad Co. v. Evans, 288 Ala. 25, 256 So.2d 861; Southern Railway Co. v. Reeder, 281 Ala. 458, 204 So.2d 808.

After reviewing the record, we cannot say that the trial judge erred in denying appellant’s motion for new trial.

Assignment of Error 17 is that the trial court erred in overruling appellants’ motion for a directed verdict. Clearly, there was a scintilla of evidence under the law of the case as outlined above. ARCP 50(e).

Assignment of Error 16 is that the trial court erred in admitting into evidence the unsigned and unwitnessed copy of Mrs. Henry’s will. Appellants contend that before a purported copy of a lost will may be introduced into evidence, the proponent must overcome the presumption of destruction.

This question was considered in Jaques v. Horton, supra, where it was said:

“ * * * Sufficient search appears to have been made for the original will, to let in secondary evidence of its contents, after proof of its execution and existence ; and whether the will was destroyed by the testator animo revocandi, or by some one else without his consent or knowledge, or lost by accident, is a question not going to the admissibility of a verified copy, but a fact to be determined by the jury, if there be one, and if not, by the judge, on a consideration of all the circumstances proved. Where the will is shown to have been in the possession of the testator, and is not found at his death, the presumption arises that he destroyed it for the purpose of revocation; but the presumption may be rebutted, and the burden of rebutting it is on the proponent. The ascertainment of this fact will cast no light on the authentication of the copy, and is not preliminary to its introduction. * * * ”

But appellants contend that the copy of the will was not admissible in evidence because neither Bill Cook nor Cecil Sharp could identify the copy. They did not read the will and it was folded so that only the witness signature lines were visible.

While the usual method of authenticating a copy is by the testimony of someone who has compared the copy with the original and found the copy to be correct, other evidence may suffice. The case of Ford v. Teagle, 62 Ind. 61, answers ap-ellants’ contentions where it states :

“On the trial it was proved by Andrew Meredith, that in August, 1864, he wrote a will for the decedent at his request, but it does not appear to have been signed by the deceased in the presence of Meredith or attested by witnesses. The will was written at the house of Meredith, in Wayne township, Wayne county, Indiana, and the deceased took the will away and started to William Conner’s with it. The witness saw the deceased about an hour afterward, just as he had come out of the house of Conner, with Mr. Conner and John Meredith. The witness never saw the will after the deceased took it away from his house.
“It was proved by William Conner, that he lived about a mile from Andrew Meredith’s; that in August, 1864, the deceased called at his house and desired him to attest his will. The evidence is a little uncertain as to whether Teagle signed the will at Conner’s or had signed it before. Conner said that ‘Thomas Teagle’s name was to it.’ Conner and John Meredith signed the will as witnesses, at the request of Teagle. John Meredith testified to the attestation of the will by himself and Conner, and his impression was that the will was signed by Teagle at Conner’s house.
“At the proper time the plaintiff offered to prove by Andrew Meredith the contents of the will thus written by him for the deceased; but on objection being made the evidence was rejected, apparently on the ground that the witness could not state of his own knowledge that thé will which he had prepared was the same will which had been thus attested at Conner’s, the witness not having seen the will which he had prepared, since the deceased took it away. * * *
“We think the evidence offered was competent and should have been received. Though the witness may not have known that the will which he wrote was the same as the one which was thus attested, it might, from the evidence given, have been reasonably inferred that it was. There was certainly evidence tending to show that it was; and, if it was the same will, it was important to establish its contents.”

In the instant case, Billy McDowell testified that Mrs. Henry showed him her will; that he remembered seeing Cecil Sharp’s signature; and that Mrs. Henry told him that attorney Scott had written the will, and that Rita Jan Gray was her sole beneficiary. It would appear that there was sufficient evidence from which to identify the copy.

Assignments of Error 2, 3, 5, 6, 7, 8, 9, 10, 14 and IS charge that the court erred in overruling various objections to the introduction of evidence concerning the execution of the will and whether the witnesses were, in fact, aware that the document was a will. Since we have already stated that the will was properly executed, we need not consider these assignments.

Assignments of Error 1, 11, 21 and 22 are that irrelevant and immaterial evidence was admitted over appellants’ objection. We are convinced that if there was any error in admitting this evidence, it was without injury. Supreme Court Rule 45. An example is Assignment 1 which charged error in the failure of the court to exclude the answer to the question, “During that time did they become close? Did Mrs. Henry and Rita become close? A. Oh, yes, and Mr. Henry thought Rita hung the moon.” The non-responsive part of the answer should have been excluded but in context of the testimony, the colloquialism as to what Mr. Henry “thought” did not amount to prejudicial error.

Other argued assignments of error are concerned with the refusal of the court to give some 5 written requested charges for the appellants.

ARCP 51 provides:

“ * * * No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection. * * *”

The record shows no such objection. Thus, any error connected with these charges must be deemed waived.

Affirmed.

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


text:
    Jessie Louise McCORD v. Dennis E. STEPHENS et al.
    SC 1065.
    Supreme Court of Alabama.
    Sept. 25, 1975.
    Jesse W. Shotts, Birmingham, for appellant.
    Rogers, Howard, Redden & Mills, Birmingham, for appellees.
   MADDOX, Justice.

The only error claimed is the trial judge’s refusal to allow a wife to recover her attorney’s fees and expenses out of her late husband’s estate.

Walter Woodrow McCord, decedent, was shot and killed by his wife, the appellant, Jessie Louise McCord, on October 14, 1973, in Jefferson County, Alabama. Dennis E. Stephens, the Administrator, filed for letters of administration in the Probate Court of Jefferson County. Stephens is married to Judy McCord Stephens, the daughter of the decedent, who had waived her right of appointment in favor of him.

Stephens was appointed Administrator and submitted a bond. The administration of the estate was removed to the Circuit Court of Jefferson County upon the petition of Jessie Louise McCord, the widow, in April of 1974.

On September 17, 1974, Jesse W. Shotts and Jim Fincher, as attorneys of record for Jessie Louise McCord, filed in the Circuit Court a petition styled “Petition for Decree Pendente Lite Awarding Attorneys’ Fees.” Stephens filed an answer to the petition and the matter was heard on September 3, 1974. Following a hearing before the court, the petition was denied and this appeal was taken.

The controversy surrounds the sale of a sawmill and other property owned by the deceased. Stephens, as administrator, had petitioned the court for authority to sell the real and personal property. A private sale of the property was not confirmed by the trial court when the wife’s attorneys objected to its confirmation. Appellant claims that the property which was later sold at a public sale brought some $21,500 more than the amount that was bid at the private sale. She asked for $1,500 attorneys’ fees and $343 as expenses, saying that the efforts of her attorneys increased the size of the estate. It is not questioned that the property brought some $21,500 more at the subsequent public sale than it did at the private sale. The administrator says, however, that the offer of $77,500 for the purchase of the property at the private sale was for the purchase of only the real property upon which a lumber business was located and did not include certain other real property not used by the lumber mill. The other property was included and was subsequently sold in the public sale conducted by the register. The administrator averred in his answer to the petition for attorneys’ fees that “due to a mistake of fact the property described in the said petition did include real property not utilized by the said lumber business, but that it was not his intention to sell the said property at private (sic) and it was not the intention of the prospective purchaser to purchase the said property.” Inasmuch as the appellant has not filed a transcript of the evidence received at the hearing on the petition for attorneys’ fees, we do not know what that evidence showed regarding their claim and the administrator’s answer that he was mistaken.

The trial judge determined that counsel for Mrs. McCord was representing her interest and not representing the estate or the administrator. He concluded that under the circumstances, he would not award to them an attorneys’ fee.

The appellant is correct in stating that in all suits and proceedings in the Probate Court and in Circuit Court and in other courts of like jurisdiction, where there is involved the sale of property for distribution, the court having jurisdiction of such suit or proceeding may ascertain a reasonable attorneys’ fee, to be paid to the attorneys or solicitors representing the common property, or any party to the suit or proceeding. See Clark v. Clark, 287 Ala. 42, 247 So.2d 361 (1971). The record filed on this appeal does not contain a transcript of the evidence taken at the hearing on the petition for attorneys’ fees, and we cannot say, based on the record before us, that the trial judge abused his discretion.

Affirmed.

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


author: WRIGHT, Presiding Judge.

text:
    Andrew A. BLEVINS v. James PRUITT.
    Civ. 548.
    Court of Civil Appeals of Alabama.
    Sept. 10, 1975.
    James & Lowe, Haleyville, for appellant.
    Jerry W. Jackson, Haleyville, for appel-lee.
   WRIGHT, Presiding Judge.

Plaintiff brought suit for the work and labor of installing air conditioning in a mobile home. Defendant counter-claimed for breach of warranty in the installation. Verdict and judgment was for the plaintiff for the sum of $775.00.

Defendant moved for new trial on the ground that plaintiff testified mistakenly or falsely in his testimony as to the model of conditioner installed and the instructions used in the installation. After hearing and receipt of evidence on the motion, the same was denied and defendant appeals. We affirm.

The argument of defendant is that the evidence produced at the hearing on the motion showed plaintiff's testimony that he installed a Model SCH 36A and used instructions issued by the manufacturer thereof for the installation was false. Evidence of defendant was that the Model SCH 36A had not been manufactured nor instructions published thereon until more than a year after the installation. Defendant contends that as plaintiff did not answer or rebut such evidence, it must be concluded that he testified falsely and the judgment should be reversed because of such false testimony.

Plaintiff contends that the- matters presented by the motion amounted to nothing more than an effort to claim newly discovered evidence.

We have carefully reviewed the evidence presented during the trial and in support of the motion for a new trial as they relate to the issues presented by the complaint and the counter-claim. The complaint claimed money for work, labor and materials. There was no dispute that such work or labor was performed and the claimed materials furnished. There was no dispute that payment had not been made. Defendant claimed by way of counter-claim that the labor was not performed in a workmanlike manner, that the air conditioner did not perform as promised and that he was caused to spend large sums for repairs and changing parts of the installation.

Plaintiff in response to the counter-claim offered testimony that he had installed an air conditioner selected by the defendant and had installed it according to instructions of the manufacturer. He offered into evidence instructions which he said he followed. At the trial there was examination and cross examination as to the model of air conditioner installed and whether it was properly installed. There was no contention by defendant that the unit installed was unfit and not according to his needs, but only as to whether the work was properly done.

The evidence on the motion did show, without dispute, that the instructions which plaintiff stated he followed and which he presented as an exhibit were not written or issued at the time of installation; however, it was shown by cross-examination that the installation described by plaintiff was in accord with instructions issued for the model which he installed and there was no material difference in the instructions issued for the two units. Each unit produced the same cooling power in BTU’s and that the unit later produced contained only minor modifications in construction.

The evidence to refute the prior testimony of plaintiff produced on the motion for new trial was available to defendant at the time of trial. The model number was attached to the unit. Investigation and preparation for trial would have fully made available the impeaching evidence subsequently produced at the hearing on the motion for a new trial.

The granting or denial of a motion for a new trial on the ground of newly discovered evidence rests largely within the discretion of the trial court. The ruling of the trial court will not be disturbed unless it is clearly shown to have abused its discretion. Kurn v. Counts, 247 Ala. 129, 22 So.2d 725; Lassiter v. State, 38 Ala.App. 287, 83 So.2d 365. The case of Forest Investment Corp. v. Commercial Credit Corp., 271 Ala. 8, 122 So.2d 131 sets out the settled rules by which a motion for a new trial on the ground of newly discovered evidence is to be tested.

We need not repeat them here, but state that when applied to the issues and evidence of this case, we find no abuse of discretion by the trial court in the denying of the motion for new trial.

Affirmed.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    Inez LANTON v. HOLLY REALTY COMPANY, INC., a corporation.
    Civ. 629.
    Court of Civil Appeals of Alabama.
    Sept. 17, 1975.

      Jackson W. Stokes, Elba, for appellant.
    Cassady & Fuller and M. Dale Marsh, Enterprise, for appellee.
   BRADLEY, Judge.

Plaintiff-appellee, a corporation licensed as a real estate broker in Alabama, commenced this action by filing a complaint in the Circuit Court of Coffee County, Enterprise Division, seeking to recover $2,400 plus interest, for the breach of a sales agreement previously entered into with the defendant-appellant. After the denial of a motion to dismiss, plaintiff filed a motion for summary judgment with accompanying affidavits and exhibits. Defendant moved to dismiss the motion for summary judgment and filed supporting affidavits. Summary judgment in the amount of $2,532 which included interest was awarded to plaintiff. Defendant’s motion to set aside this judgment was denied and she appeals the summary judgment.

The facts show that W. H. Jenkins of Holly Realty Company on January 12, 1974 entered into a written contract with defendant, Inez S. Lanton, by which Holly Realty was authorized to sell a piece of property owned by defendant and located at 102 Olive Springs Drive, Enterprise, Alabama. Holly Realty, by the terms of the contract, was employed as the exclusive agent for the sale of that property for a period of 180 days from January 12, 1974. The agency’s sale commission was to be five percent of the sale price. The contract further provided that “all earnest money deposits paid upon the purchase price shall be held by the agent in an escrow account until consummation of the deal or termination thereof.” On April 6, 1974 William N. Price signed a written agreement with Holly Realty to purchase defendant’s property located at 102 Olive Springs Drive in Enterprise, Alabama for the sum of $48,000. Earnest money in the amount of $1,000 was deposited with Holly Realty by W. N. Price. On April 17, 1974 defendant stated by written endorsement on that agreement form that she accepted Price’s offer to purchase.

On that same day, i.e., April 17, 1974, W. N. Price and his wife entered into a written sales contract with defendant to purchase the property in question for $48,000. The contract provided that the earnest money, if forfeited by non-compliance of purchaser, was to be equally divided between defendant and Holly Realty; otherwise the earnest money of $1,000 was to be applied to the payment of the sales price of $48,000.

By affidavit filed in support of plaintiff’s motion for summary judgment, Bill Jenkins of Holly Realty stated that after the execution of the sales contract, the purchaser obtained financing from Dothan Federal Savings and Loan Association in Dothan, Alabama and a loan closing was arranged for August 30, 1974. The buyer and defendant were notified of the closing date, and on that date the buyer, the loan officer and the agent were present; the defendant did not appear.

Mr. Billy Lane, an officer of Dothan Savings and Loan, also gave an affidavit in support of plaintiff’s motion, stating that W. N. Price had applied for a loan on the property offered for sale by defendant and a written commitment was made on May 10, 1974 to lend him $41,900. He states the buyer was, on August 30, 1974 ready, willing and able to purchase defendant’s property.

W. N. Price by affidavit said that he signed a sales agreement with defendant to purchase the property she had offered for sale and had agreed to pay $48,000 for it. He said that he had paid $1,000 as earnest money on the signing of the sales agreement, had obtained a loan commitment from Dothan Federal Savings and Loan for $41,900 and had in his possession at the loan closing a check in the amount of $5,100 drawn to the order of defendant. He says that at the time of the loan closing, he was ready, willing and able to purchase defendant’s property.

Defendant says by motion to dismiss the summary judgment motion and by affidavit that she listed her property with Holly Realty for only 90 days. Between the 10th and 15th of July 1974, W. N. Price told her he was not going to buy the property. She said that about the middle of August 1974 she told Jenkins and Sheppard of Holly Realty that W. N. Price did not want to buy the property. She said she had no knowledge of a meeting with Price with reference to a loan closing on August 30, 1974.

By affidavit, Mrs. Hazel Andrews said she was in the office of Lanton Moving and Storage in New Brockton, Alabama and overheard Price tell defendant that he was not going to buy her home.

The supreme court in Birmingham Television Corp. v. Water Works, 292 Ala. 147, 290 So.2d 636, said:

“A motion for summary judgment may be granted only when there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.”

In the case at bar we agree with the trial court’s conclusion that no genuine issue of fact existed for resolution by a jury.

The question for decision by the trial court was whether or not plaintiff was entitled to receive a commission for obtaining a buyer for property owned by defendant.

In Penney v. Speake, 256 Ala. 359, 54 So.2d 709, the supreme court said:

“While there is a distinction between contracts by which a broker is employed to procure a purchaser for property and contracts by which he is employed to effect a sale or to sell, the rule in this jurisdiction is that brokers employed under the latter type of contract, as well as those employed under the first-mentioned type, are entitled to their compensation where they have procured a purchaser ready, able and willing to perform the terms specified or agreed upon, notwithstanding no actual transfer takes place because of the refusal of the seller to convey. [Citations omitted.]”

The U. S. Court Appeals for the Fifth Circuit in Ar-Con Building Specialties, Inc. v. Famco, Inc., 480 F.2d 162 (5th Cir. 1973) interpreted this rule of law to mean that at the moment the real estate broker found a purchaser ready, willing, and able to buy, the sale was constructively consummated and the commission was earned.

The documentary evidence shows that defendant gave plaintiff exclusive authority for 180 days to sell her property located at 102 Olive Springs Drive, Enterprise, Alabama; that a buyer was obtained and a sales agreement between the buyer and seller was entered into on April 17, 1974 whereby the buyer paid $1,000 earnest money and agreed to pay the balance at the loan closing; that on May 10, 1974 the Dothan Federal Savings and Loan committed itself in writing to lend $41,900 to the plaintiff to purchase the property.

We conclude that as of May 10, 1974, plaintiff had presented to defendant a buyer ready, willing and able to buy her property and that as of that date the sale of that property was constructively consummated as to entitle plaintiff to his commission.

Defendant in her affidavit did not dispute the fact that she had entered into a written agreement to sell the subject property to W. N. Price nor that she had by written agreement engaged plaintiff to obtain a buyer for the property. She did say that the listing agreement was for only 90 days rather than 180 days as appears in the written agreement. Defendant’s statement that the listing agreement was for only 90 days is contrary to the written agreement she signed with plaintiff and cannot be considered, for to do so would have the effect of allowing parol testimony to alter the terms of a written agreement. This cannot be done in the absence of fraud, and there is no evidence of fraud here. Commercial Credit Co. v. Seale, 30 Ala. App. 440, 8 So.2d 199, cert. den., 242 Ala. 661,8 So.2d 202.

The undisputed evidence shows that as of May 10, 1974, plaintiff had obtained a buyer ready, able and willing to purchase defendant’s property, and at that moment the plaintiff had earned his commission even though the defendant later refused to complete the sale.

There being no genuine issue of a material fact in the case at bar, the plaintiff was entitled to summary judgment and the trial court’s judgment so holding is affirmed.

Affirmed.

WRIGHT, P. J., and HOLMES, J., concur.


text:
    James M. STOREY and Allstate Insurance Company, a corporation v. DAY HEATING & AIR CONDITIONING CO., INC.
    Civ. 567.
    Court of Civil Appeals of Alabama.
    Sept. 3, 1975.

      Sanford D. Weiss, Montgomery, for appellants.
    James W. Cameron, Montgomery, for appellee.
   BRADLEY, Judge.

Appellants-plaintiffs filed an action in the Circuit Court of Montgomery County against appellee-defendant seeking damages in the amount of $925 for the breach of an implied warranty of merchantability under Uniform Commercial Code, Section 2-314. After issue was joined, trial was had before the court and jury with a verdict and judgment being returned in favor of defendant. Plaintiffs appealed from that judgment.

The assignments of error suggest that the trial court erred in refusing appellants’ motion for a directed verdict and in rendering a judgment that was contrary to the law and the facts. We can be concerned only with the assignments of error directed to the trial court’s refusal to grant appellants’ motion for a directed verdict, for the other two assignments present nothing for review.

An assignment of error stating that the judgment or decree is contrary to the law or evidence is so general as to present nothing for review. Allen v. Allen, 49 Ala.App. 200, 269 So.2d 914; Bertolla v. Kaiser, 267 Ala. 435, 103 So.2d 736; and Jones v. Wise, 282 Ala. 707, 213 So.2d 914.

In brief appellants say that the record contains sufficient evidence to prove all the essential elements of an action for breach of an implied warranty and a directed verdict should have been given.

The facts as revealed by the record show that appellant Storey engaged appellee in January 1972 to install a heating and air conditioning system in his house. During the installation it was decided, on defendant’s recommendation, to install a pump to remove the condensate resulting from the cooling action of the coil. Defendant purchased the pump — which was a sealed unit —from a Montgomery supplier and installed it in Storey’s house.

In July of 1972, while Storey and his family were on vacation, the pump failed and the condensate spilled over into the hall, living room and dining room of Sto-rey’s house, causing the hardwood floors to buckle and the wall-to-wall carpet to be damaged.

The defendant was contacted and sent a repairman who replaced the pump without charge to Storey.

Storey then contacted his homeowner’s insurance carrier about the damage caused by the water. The insurance company paid $925 to have the house repaired.

The defendant testified that he was not asked to pay for any damages nor did he offer to pay for them; he corrected the problem of the defective pump, which was all that was asked of him.

In an action for breach of an implied warranty, the plaintiff must prove the existence of the implied warranty, a breach of that warranty, and damages proximately resulting from that breach. Geohagan v. General Motors Corp., 291 Ala. 167, 279 So.2d 436. The elements of proof set out above necessarily present factual issues which must in most cases be resolved by the jury or by the trial judge sitting without a jury. See Comment 13 to Title 7A, Section 2-314, Code of Alabama 1940, as Recompiled 1958; McHugh v. Carlton, 369 F.Supp. 1271 (D.S.C.1974). A directed verdict should be awarded to plaintiff only when the evidence favorable to the defendant, and all reasonable inferences therefrom, is insufficient for the consideration of the jury. Delchamps, Inc. v. Stewart, 47 Ala.App. 406, 255 So.2d 586, cert. den. 287 Ala. 729, 255 So.2d 592. Such is not the case here.

To establish the existence of an implied warranty of merchantability, the jury must be reasonably satisfied not only that the defendant sold the article in question to the plaintiff, but also that the seller was “a merchant with respect to goods” of the same kind as the article sold to plaintiff. See Title 7A, Sections 2-104 and 2-314, Code of Alabama 1940, as Recompiled 1958. The evidence here shows without dispute that the condensate pump was sold to plaintiff Storey by defendant, but the evidence is not so conclusive as to whether or not defendant was a merchant with respect to goods of that same kind.

Comment 3 to Section 2-314 provides in pertinent part as follows:

“. . . A person making an isolated sale of goods is not a ‘merchant’ within the meaning of the full scope of this section and, thus, no warranty of merchantability would apply.”

There is no direct evidence in the record that defendant ever sold any condensate pumps other than this one sold to Storey. However, defendant testified knowledgeably about the workings and installation of condensate pumps, and it was he who recommended that the pump be installed. From this testimony an inference could be gleaned that defendant had installed and sold other condensate pumps during the six years he had been in the heating and air conditioning business.

But the drawings of such an inference would be for the jury. On this record the jury was equally entitled to conclude that the condensate pump sale in question was the only one that defendant had ever made. Either of these conflicting inferences could be drawn from the evidence and neither would be unreasonable. A conclusion that this sale was in all respects an “isolated” one would certainly warrant the jury in deciding that the defendant was not a merchant within the meaning of Sections 2-104 and 2-314, supra. The existence vel non of facts necessary to establish an implied warranty properly rested upon the jury’s persuasion that one inference was more probable than the other. The jury found for the defendant, hence we must conclude that the jury decided the defendant was not a merchant. Defendant not being a merchant, there could be no warranty of merchantability. The trial court was correct in denying plaintiff’s motion for directed verdict.

No reversible error having been argued, the judgment of the trial court is affirmed.

Affirmed.

WRIGHT, P. J., and HOLMES, J., concur.


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    William E. MEADS, Jr., et al. v. DIAL FINANCE COMPANY OF GADSDEN.
    Civ. 439.
    Court of Civil Appeals of Alabama.
    Aug. 27, 1975.

      Church & Trussed, Pell City, for appellants.
    No appearance for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from a judgment declaring a materialman’s lien on real estate and improvements thereon and condemning same for sale.

Plaintiff, Dial Finance Company brought suit, as assignee to enforce a materialman’s lien against St. Clair County Board of Education as purchaser of real property.

The facts, largely stipulated, were that in March of 1973, Rainbow City Awning and Home Improvement Co. entered into a contract with William E. Meads, Jr. and wife to sell them aluminum siding to be used in improving their home. The siding was delivered and installed. On April S, 1973, the Meads and Rainbow entered into a conditional sales contract. The contract was assigned to Dial on April 10, 1973; on June 2, 1973, Dial filed a financing statement for record in the probate office of St. Clair County, with a copy of the contract attached. In May of 1973, the Meads divorced and Mrs. Meads conveyed her interest in the property to her husband. The conveyance stated that the husband assumed the “indebtedness for home improvement siding.” On July 3, 1973, Meads sold the property to defendant, Board of Education. On September 14, 1973, Dial filed its statement of lien under Title 33, Sec. 42, Code of Alabama (1940). It subsequently brought suit on December 31, 1973.

Defendant-appellant presented two basic issues below and after adverse ruling presents them here as assignments of error.

The first contention of defendant is that the lien statutes do not apply as the property is owned by a public agency and the property is used for public purposes.

It is true that the lien statutes do not apply if the contract out of which the lien may arise is made with a governmental agency. Rayborn v. Housing Authority of Washington Co., 276 Ala. 498, 164 So.2d 494. However, such is not applicable to the facts of this case. An existing inchoate lien is not defeated by the acquisition of the property by a governmental body. 57 C.J.S. Mechanics’ Liens § 10, P. 507. Findorff v. Fuller & Johnston Mfg. Co., 212 Wis. 365, 248 N.W. 766. The right to a lien upon property arising from a contract between private parties may not be defeated merely by the subsequent transfer of title to a governmental agency. Such is the case before us.

The second issue presented is one of fact. The Board contends that its purchase of the property is not subject to the lien, because it is an innocent purchaser without notice.

It was held in the case of Martin v. Clarke, et al., 154 Ala. 425, 46 So. 232 in 1908 that a purchase for value without notice is not included in the statute granting priority to materialman’s liens. Title 33, Sec. 38, Code. This ruling was followed in the recent case of Guaranty Pest Con., Inc. v. Commercial Inv. & Dev. Corp., 288 Ala. 604, 264 So.2d 163 (1972).

However, the question of whether the Board was an innocent purchaser of the fee without notice, either actual or constructive, is one of fact, the burden of proof of which was upon defendant Board. Crane v. Wilson Lumber Co., 288 Ala. 439, 261 So.2d 877. Defendant attempted to sustain such burden by showing that the statement of lien was not filed until after the purchase and that the financing statement filed by plaintiff in the probate office was recorded in the personal property lien records rather than in the real estate records. Defendant further showed that it was furnished an attorney’s title opinion certifying that no liens were on the property.

There is no evidence that defendant had actual notice of existing matters or conditions which could give rise to a mate-rialman’s lien. The siding had been installed for more than three months when defendant purchased the property. Plaintiff must depend on two instruments to establish constructive notice. The first is a financing statement form filed in the probate office of St. Clair County on June 2, 1973. The statement was not signed by the debtor as provided by Title 7A, Sec. 9-402 of the Code. It was not sufficient to perfect a security interest in personal property. It therefore cannot serve as constructive notice as against a purchaser of the fee in real estate.

The second instrument which plaintiff relics on for constructive notice is the deed from Mrs. Meads to Mr. Meads. That instrument contained in the descriptive clause the following:

“As additional consideration for the execution of this conveyance the grantee herein, William E. Meads, Jr., agrees to pay all outstanding personal family and furniture indebtedness and home improvement indebtedness, particularly home-siding indebtedness.”

There is not sufficient information contained in this statement to inform defendant of the existence of a lien. At most, it could give an examiner of title cause to proceed to the probate office to look for a statement of lien. If such examination was made, there was nothing to be found in the real estate records of the probate office.

There was no reason to search the U.C. C. filings, as such could not have priority over “a subsequent purchaser for value of any interest in the real estate.” Sec. 9— 313(4) (a), the Code.

As the evidence of constructive notice was in the form of written exhibits, on appeal, we view such evidence as did the trial court and without any presumption as to the correctness of the trial court’s findings. We hold the trial court in error in rendering judgment in favor of plaintiff on Count 1 of the complaint. We reverse that judgment and render judgment in favor of defendant. Title 7, Sec. 810, Code of Alabama (1940).

Reversed and rendered.

BRADLEY, and HOLMES, JJ., concur.


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    W. K. TROTTER v. Carl J. SUMNER.
    Civ. 556.
    Court of Civil Appeals of Alabama.
    Sept. 17, 1975.

      Jesse W. Shotts, Birmingham, for appellant.
    Hardin, Stuart, Moncus & Noojin, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

Defendant appeals from a verdict and judgment for $2,500.00 in favor of plaintiff. We affirm.

Defendant presents four assignments of error for review, those being:

1. The judgment was contrary to the law.
2. The judgment was contrary to the facts.
3. The trial court erred in denying the appellant’s motion to dismiss.
4. The trial court erred in denying the appellant’s motion for a new trial.

The courts of this state have on numerous occasions held assignments of error such as those numbered 1 and 2 above insufficient to present any question for review. Mills v. Pearson, 287 Ala. 311, 251 So.2d 612; Stapleton v. Stapleton, 282 Ala. 62, 209 So.2d 202.

As to assignment of error 3, we note that defendant’s motion to dismiss for failure to state a claim upon which relief can be granted was filed after his responsive pleading. While this defense, as enumerated in Rule 12(b)(6), is preserved by Rule 12(h)(2), it cannot be raised by a motion to dismiss filed subsequent to a responsive pleading. Rule 12(b) Alabama Rules of Civil Procedure. Therefore, the court did not err in overruling the motion to dismiss.

Defendant argues in brief that the court erred in overruling his motion for summary judgment though he has not challenged such ruling by assignment of error. This motion was filed on the day of trial. The certificate of service recites that a copy was mailed to plaintiff’s attorney five days prior to trial. Rule 56(c) requires such motions to be served on the opposing party at least 10 days prior to the time fixed for hearing. The motion states that it is based on the deposition of plaintiff. In brief defendant states that the motion was based on the Bill of Sale. However, the deposition is not before us as it was not introduced at trial. We can only state that the testimony of plaintiff, together with his exhibits at trial, fail to show that there was no genuine issue of material fact and that defendant was entitled to judgment as a matter of law. To the contrary, the testimony of plaintiff presented distinct issues of fact. Therefore, the court did not err in refusing to grant a summary judgment without some evidence in the form of exhibits, affidavits or otherwise to indicate that there was no genuine issue as to any material fact, and that plaintiff was entitled to judgment as a matter of law. Fleming v. Alabama Farm Bureau Mut. Cas. Ins. Co., 293 Ala. 719, 310 So.2d 200.

Assignment of error 4 is that the trial court erred in denying appellant’s motion for a new trial. We find that the grounds for the motion for new trial are as general as the assignments of error and do not warrant consideration. The grounds are:

1. For that said judgment and verdict is contrary to the law in the case.
2. For that said judgment and verdict is contrary to the facts of this case.
3. For that said judgment and verdict is against the weight of the evidence in this case.
4. For that said judgment and verdict is excessive.
5. For that said judgment and verdict is a result of bias, prejudice, and passion on the part of the jury.

The first two grounds presented in the motion for new trial are insufficient to present any question for review in that they do not specify the precise error that is alleged to have occurred. Boudrow v. H & R Construction Company, 284 Ala. 60, 222 So.2d 154. Grounds 4 and 5 of the motion are not argued in brief, and will therefore not be considered on appeal. Johnson v. Hodge, 291 Ala. 142, 279 So.2d 123.

As to the ground that the judgment is against the weight of the evidence, we note that defendant has not included in brief a condensed recital of the evidence given by each witness in narrative form bearing on the points in issue as required by Rule 9, Supreme Court Rules. Due to this failure to comply with Rule 9(b) of the Supreme Court Rules, this ground for a new trial need not be considered. Further, verdicts are presumed correct and no ground of new trial is more carefully scrutinized or more rigidly limited than that the verdict is against the evidence. Jackson v. Brown, 49 Ala.App. 55, 268 So.2d 837. The decision of the trial court, refusing to grant a new trial on the ground that the verdict is contrary to the evidence, will not be reversed unless, after allowing all reasonable presumptions of correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. Woods v. Laster, 291 Ala. 139, 279 So.2d 121. Examination of the transcript reveals sufficient evidence to support the verdict, and does not convince the court that the verdict is wrong and unjust. There was no error in overruling the motion for new trial.

Affirmed.

BRADLEY and HOLMES, JJ., concur.


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    Ruth S. CAPRA v. Charles Samuel CAPRA.
    Civ. 527.
    Court of Civil Appeals of Alabama.
    Sept. 17, 1975.

      J. Louis Wilkinson, Birmingham, for appellant.
    Claude E. Bankester, David P. Rogers, Jr., Birmingham, for appellee.
   BRADLEY, Judge.

Ruth Capra, plaintiff-appellant, commenced this action by filing in the Circuit Court of the Tenth Judicial Circuit of Alabama a petition to modify a prior decree of divorce by increasing alimony and child support payments. The original divorce decree entered on July 25, 1969 incorporated an agreement between these parties which provided the plaintiff $100 per month alimony and $250 a month support for each of the two children of the marriage. In the petition to modify here on appeal, plaintiff requested an increase in alimony to $1,200 per month and an allowance of $500 per month child support. The trial court increased alimony to $200 per month and left the support for the child Michael at $250 per month, both figures appellant now attacks as arbitrary and insufficient. The trial court also took custody of the child Debra away from the plaintiff and awarded it to Debra’s father, Dr. Charles Capra, the defendant-appellee. Appellant claims that this latter action of the trial court was unwarranted.

The Capras were married, for fourteen years. Michael, now 20 years old, and Debra, 18, were the only children born during this marriage. Charles Capra attended pharmacy and medical school while married to, appellant who worked to help support the family. At the end of Dr. Capra’s internship, and immediately prior to his residency, the couple were divorced and the alimony and child support referred to above were awarded Mrs. Capra. At that time, 1969, Dr. Capra’s income was about $1,500 per month. In 1973 Dr. Capra’s income exceeded $70,000 per year. In 1969 Mrs. Capra, a real estate broker, earned about $10,000 on her own. In the years between 1969 and 1972 she had earned between $10,000 and $17,000 each year. In 1973 her federal income tax return reflected just over $2,000 income. In the first ten months of 1974 Mrs. Capra’s income had increased to over $11,000. Also during 1973 and 1974 Mrs. Capra had a substantial increase in her net equity in real estate investments.

Appellant’s first assignment of error is that the increase in alimony of $100 per month awarded by the trial court is a grossly insufficient sum. The matter of alimony is largely discretionary with the trial court, and where the evidence below was taken orally, as it was in this case, the determination will not be disturbed on appeal unless palpably wrong. See Divorce, Section 286, Alabama Digest. We are not prepared to say that the trial court was palpably in error on this issue. It is true that appellee’s income has increased dramatically in the years since the original decree of divorce. This alone, however, is not sufficient to justify a concomitant increase in periodic alimony. The original award of alimony is to be deemed appropriate unless the party seeking modification can demonstrate a substantial change in material circumstances. See Divorce, Section 245(2), Alabama Digest. The essential element in the determination of alimony is the wife’s need; the magnitude of the husband’s income, and fluctuations thereof, is material as it relates to his ability to respond to that need. However, the mere fact that the husband’s ability to pay exceeds the amount necessary to satisfy the wife’s need does not in and of itself warrant an increase in alimony payments to the wife.

In this case the trial court had before it extensive oral testimony relating to the assets, expenses, earning capacity, and business ability of the parties. It determined that changed circumstances warranted a $lüü per month increase m alimony. Such a determination amounts to a finding that this was the extent of increase in appellant’s real need. The evidence establishes that appellant is actively engaged in a profitable business, that she has shown a sizeable increase in net equity in her real estate investments, and that she is a healthy, industrious person possessed of considerable business ability. It was within the trial court’s discretion to weigh these factors against the evidence of appellant’s reduced taxable income and increased personal expenses. We find no error in the alimony modification decreed below.

Nor do we find merit in appellant’s second assignment of error, which terms the trial court’s failure to increase the child support payments for Michael Capra arbitrary. The controlling consideration in setting the amount of child support payments is the welfare of the child. In light of Michael’s age, employment, and earnings, a refusal to modify the original decree of child support constitutes no error, and properly provides for his welfare.

Appellant’s third assignment asserts the trial court erred by giving custody of Debra Capra to her father without any substantial evidence being adduced to warrant this change of custody.

The change in custody of the daughter was made by the court without a request therefor in the pleadings. However, such a request is no longer required to be made in the pleadings so long as there is sufficient support in the evidence for the court’s decree. See Rules 54(c), 15(b) and 61, Alabama Rules of Civil Procedure. The guiding principle for the courts in custody cases is still the best interest of the child. And, if the evidence shows the best interest of the child will be served by a change in its custody, the pleadings will be deemed amended to conform to such evidence. Awad v. Awad, 54 Ala.App. 154, 306 So.2d 21.

Where a prior decree has been modified to effect a change in custody of a child, the presumption is that circumstances have sufficiently changed so as to warrant that action. There must be changed circumstances to authorize the modification of a custody decree, and the cited case does not eliminate this requirement.

In the case at bar, we are convinced that there is sufficient evidence of changed circumstances to authorize awarding custody of Debra to her father.

The evidence shows without dispute that the daughter, who was 18 years old at the time, moved out of her mother’s house and established her own residence. None of the money being paid to the plaintiff by defendant was given to or used by the mother for the support of the daughter after she left her mother’s house. The mother testified that she had not seen her daughter in four or five months and had talked to her only one time on the telephone.

From these facts the trial court could have easily concluded that the plaintiff had forfeited her parental responsibility and that the daughter’s welfare and best interests would be best served by changing custody to the father. We find no prejudicial error in such finding.

For the reasons given we affirm the trial court’s decree.

Affirmed.

WRIGHT, P. J., and HOLMES, J., concur.