text:
    John E. FORRESTER, Jr. v. Emolyn W. PUTMAN.
    80-6.
    Supreme Court of Alabama.
    Nov. 25, 1981.
    As Modified on Denial of Rehearing Feb. 5, 1982.

      David R. Donaldson of Gorham & Donaldson, Birmingham, for appellant.
    Jack E. Held and P. Timothy McAbee of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for appellee.
   ADAMS, Justice.

Mrs. Frances Forrester died on September 23, 1977, survived by her son John For-rester, Jr., (appellant) and her sister, Emo-lyn Putman. Mrs. Putman’s husband, Oather Putman, filed in Shelby County Probate Court a will which he had written for Mrs. Forrester, as her attorney, dated August 18, 1977. John contested this will in Shelby Probate Court, but the petition for probate was dismissed without prejudice on April 3, 1978, by stipulation. John filed an action in Shelby Circuit Court on April 12, 1978, challenging joint ownership with right of survivorship between Mrs. Forrester and Mrs. Putman of certain securities for which John asserted Mrs. Forrester had paid the whole consideration. Thereafter, on May 16, 1978, the Putmans’ attorney sent a letter to John’s attorney, purporting to withdraw the stipulation for dismissal “[i]n light of the lawsuit which was recently filed. ...”

On April 24, 1978, John filed in Shelby Probate Court for probate of a will executed by Mrs. Forrester on March 5, 1974. The Judge of Probate admitted this will to probate on May 24, 1978, and granted letters testamentary to John. Mrs. Putman filed an action in Shelby Circuit Court on July 6, 1978, contesting the 1974 will and John’s letters testamentary, alleging that the 1974 will had been revoked by the 1977 will. This contest was consolidated with John’s action to set aside the transfer of interest in the securities; in this aspect of the case, the circuit court set aside the transfer of an interest to Mrs. Putman based upon a finding of undue influence and this portion of the order was not appealed.

The facts of the case showed that prior to the death of her husband, John Forrester, Sr., in 1975, Mrs. Forrester had emotional problems and consumed excessive amounts of alcohol and drugs. The testimony conflicted over her condition prior to and at the time of execution of the 1977 will; there was credible evidence both for and against her capacity. In addition to capacity, John raised undue influence as a challenge to the 1977 will. The court found that the presumption of undue influence, raised by the confidential relationship, by the Putmans’ role in execution of the will, and by the fact that her attorney was her brother-in-law and an indirect beneficiary, was not overcome with regard to the stock transaction, but was overcome with regard to the will execution. The decree bases this finding on the lack of evidence relating to independent choice in the former instance and the plethora thereof (which also went to the issue of capacity) in the latter.

The trial began on May 21, 1980; after the examination of John’s first witness, the court made the following statement:

For the record, in reviewing the file [in Mrs. Putman’s will contest action], I see that our pleadings were technically deficient. By agreement, however, and in accordance with the evidence to be presented, the 1977 will, which is mentioned in the Plaintiff’s Complaint, is offered at this time for probate and Defendant objects to the probate of that will on the same grounds he has set out for relief in [his action to set aside the inver vivos transfers].

The Court’s final order decreed the 1977 will to be valid, but made no mention of the 1974 will which was the subject of Mrs. Putman’s complaint. In ruling on John’s motion for a new trial, the court stated:

Never was there any procedural objection until after Judgment was entered in this case. Further, the issues involved in this case were stated to the Court by both parties and were, therefore, clearly understood. Two wills, including the will which this Court upheld as valid, had been admitted to Probate. No jury demand was ever made in this case. Motion denied.

The circuit court’s treatment of the 1977 will reflects misapprehension as to the status of this will. The purported unilateral withdrawal of the stipulation for dismissal is of dubious effect; even if it did serve to revive the probate proceeding, there is no support in the record for the trial court’s observation that the 1977 will was admitted to probate. There was neither a transfer of a contest to the circuit court according to Code 1975, § 43-1-78, nor a circuit court contest of a will admitted to probate according to Code 1975, § 43-1-79. A circuit court’s jurisdiction over a will contest is statutory and limited. Nottage v. Jones, 388 So.2d 923 (Ala.1980); Cagle v. Reeves, 353 So.2d 787 (Ala.1977). Therefore, the circuit court had jurisdiction over the 1977 will only to the extent of determining whether it revoked the 1974 will. Although the ruling on the motion for new trial points out that no procedural objection was made until after trial, lack of subject matter jurisdiction can be raised at any time. Rule. 12(h)(3), A.R.C.P.

In view of our holding that the circuit court’s decision on the validity of the 1977 will was not couched in terms of its jurisdiction over the 1974 will contest, there is some question as to the effect of its findings of testamentary capacity and lack of undue influence should an application for probate and a contest thereto be filed subsequent to this decision. In determining whether the 1977 will revoked the 1974 will the circuit court had to consider whether the 1977 will met the following requirements:

(1) The will must be in writing; (2) it must be signed by the testator, or someone for him; (3) it must be attested by at least two witnesses; and (4) the witnesses must subscribe their names in the presence of the testator.

Allan v. Allan, 353 So.2d 1157 at 1157 (Ala.1977); Code 1975, § 43-1-33.

John’s proper response to the claim of revocation, therefore, would have been to challenge the 1977 will on one of these four grounds. Instead, he challenged the 1977 will on the grounds of capacity and undue influence. Because he raised these issues, which were exhaustively tried and ably decided, he will be estopped from raising them again should the 1977 will be properly filed for probate and should he decide to contest it. We are mindful of the observation in Kelley v. Sutliff, 262 Ala. 622, 80 So.2d 636 (1955), that in this situation the probate of the 1977 will is a matter “which must be first addressed to the probate court, and this, we think, without encroachment upon its primary jurisdiction.” Id., at 628, 80 So.2d 636. Nevertheless, we believe that the circumstances described above properly preclude John from raising these issues before the probate court.

John raises the argument here that he was denied the right to trial by jury. However, we note that he sought a trial by jury in his action to set aside the inter vivos transfers, but not in his defense to Mrs. Putman’s contest of the 1974 will. Because his demand in the former case was properly denied as untimely and because in the latter case he raised the issue for which he now claims the right to trial by jury, we hold he has waived the right to make this demand.

The trial court’s decision that the 1977 will is valid only impliedly holds that the 1974 will was revoked. This decision presupposes that the 1977 will was properly executed, signed, and witnessed, so we remand the case only for the circuit court to amend its decree to explicitly hold the 1974 will is revoked and to clarify that the 1977 will has not been admitted to probate.

REVERSED AND REMANDED WITH DIRECTIONS.

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

On Application for Rehearing

ADAMS, Justice.

OPINION MODIFIED; APPLICATION FOR REHEARING OVERRULED.

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


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Nile GARMON, et al. v. KING COAL CO., INC.
    80-487.
    Supreme Court of Alabama.
    Dec. 11, 1981.
    Rehearing Denied Jan. 22, 1982.
    B. Don Hale and Roy W. Williams, Jr., Cullman, for appellants.
    Finis E. St. John, III of St. John & St. John, Cullman, for appellee.
   MADDOX, Justice.

This is the second time this case has been here. The case was first tried in Circuit Court before a jury and the jury returned a verdict in favor of the plaintiffs Nile and Jimmy Garmon, appellants here. The trial court entered a judgment in favor of the Garmons against the defendant, King Coal Company, and King Coal appealed. This Court reversed and remanded the cause to the Circuit Court “for further proceedings not inconsistent” with its opinion. King Coal Co. v. Garmon, 388 So.2d 886 (Ala.1980). After remand, King Coal Company filed a motion for summary judgment “based upon the ruling of the Alabama Supreme Court, a copy of which is attached hereto as Exhibit A, and the record of the trial of this case previously held, a copy of which is on file in the office of the circuit clerk.” The Court granted King Coal’s motion for summary judgment and stated in its order, inter alia, as follows:

The court has studied extensively the Supreme Court of Alabama’s opinion reversing the case and the decision on the motion for rehearing filed in that court and decision rendered where this court was reversed, annulled and remanded to the court for further proceedings.
The court originally let this case go to the jury on paragraphs H & B as set out in the Supreme Court opinion, holding that paragraph B was enough in the contract to take the case to the jury, as opposed to the old case law that holds that paragraph H is not a contract that can be breached.
The court determines that the Supreme Court [has] held that this is not a contract of sale and that paragraphs H & B of the original contract was not a contract that had not been breached from the evidence and that there was no cause of action alleged and pending at this time.

After studying this Court’s opinion in this cause on the initial appeal, we can understand why the learned trial judge concluded that this Court had effectively rendered the cause on the contract claim. Unfortunately, this Court, in addressing appel-lee’s theory of the case (that the contract was one of sale and covered by Alabama’s Commercial Code), chose some language which was inappropriate, and which we now see was responsible for causing the trial court to conclude that the Garmons were not entitled to a new trial on their contract claim.

It is understandable, in view of these statements in the original opinion, why the trial judge decided that the Garmons were foreclosed on their contract claim. This Court’s original opinion should not have been so construed.

In its original opinion, this Court did agree with King Coal’s argument that the contract was not a contract for the sale of goods, and this Court did hold that the trial court erred in failing to grant King Coal’s motion for a new trial. We might point out that King Coal did not file a motion for a judgment notwithstanding the verdict, which would have presented essentially the same legal question presented to the trial judge on the motion for summary judgment.

On the original appeal, King Coal, in brief, argued, as follows:

Initially, it should be noted that throughout the record reference is made by the court, attorneys, parties and witnesses to a sale of the coal in question from the Garmons to King. This is an erroneous reference because no sale took place. The coal belonged to King, and the Garmons contracted to remove it from the ground for an agreed consideration. The contract was therefore one for services, and would not be subject to the provisions of the Uniform Commercial Code, but rather the general law of contracts. [Emphasis added.]

King Coal, in its brief, also contended:

Appellant respectfully requests the Court to reverse and remand this case. In the alternative, appellant urges an order of remittitur voiding the award for lost profits, and reducing the compensatory damages by $8,000.00.

In a reply brief to a brief filed by the Garmons, King Coal argued:

We have been unable to locate any cases deciding whether a transaction involving a contract to mine coal under a lease agreement with the surface owner, when the so-called buyer actually owned the coal under another lease, as in the instant case, is or is not a sale. Probably this is because it has never been seriously contended that it was. It is elementary that a man cannot “sell” that which he does not own. Appellees had no trace of ownership in the coal involved, but were merely allowed to mine it by virtue of a lease with Blan McLendon, which gave them the right to cut through the surface to the coal below, and a service contract with appellant, which states that appellant and appellees are mutually desirous of removing the coal from the land. Appellant actually had title to the coal, by virtue of a lease agreement with Taylor, Raines and Harrison, the owners of the mineral rights. Therefore, since appel-lees had no title, there could be no transfer of title, and thus, no sale such as to bring the transaction under the rules set out in Article 2 of the Uniform Commercial Code.

In view of the above, it is apparent that the question of whether' King Coal was entitled to a judgment, as a matter of law, was not presented; therefore, this Court’s conclusion, on original appeal, that King Coal was entitled to a new trial on the contract claim should not have been construed as foreclosing the Garmons from having a new trial on the contract claim. The question of the sufficiency of the evidence to support any claim under the contract was not before this Court. The claim of the Garmons for lost profits, however, was before this Court and was resolved, adverse to the Garmons. They are not entitled to relitigate any claim of loss profits.

In view of the above, we now set out the legal standard which the learned trial judge should have applied in this case, since he was reviewing a motion for summary judgment that the jury verdict in the appealed case was against the weight and preponderance of the evidence. That standard is contained in Long v. Bankers Life and Casualty Company, 294 Ala. 67, 311 So.2d 328 (1975), where this Court was faced with a factual setting very similar to the factual setting presented in this case. There, this Court set forth the law which is applicable when a trial judge is considering the effect of an appellate court reversal and remandment on subsequent relitigation, when the appellate court has exercised its discretion in ruling that a jury verdict was against the great weight and preponderance of the evidence. In Long v. Bankers Life and Casualty Company, this Court opined as follows:

Bankers Life contends that the prior determination by the appellate court binds the trial court on the theory of the law of the case. It urges that the trial court would necessarily have to grant a directed verdict because of the effect of the appellate court determination. Bankers Life relies on the following cases: Thomason v. Dill, 34 Ala. 175; Douglass, Exr. v. City Council of Montgomery, 124 Ala. 489, 27 So. 310; Lecroix v. Malone, 157 Ala. 434, 47 So. 725. However, none of these cases deals with the effect of an exercise of appellate discretion in determining that the verdict was contrary to the great weight and preponderance of the evidence; rather each case deals with an appellate court determination of law— requested written charges, Thomason, supra; whether bill has equity, Douglass, supra; admissibility of evidence, Lecroix, supra. Besides, the concept of the law of the case has undergone considerable legislative erosion. See Title 13, Sec. 28, Code of Alabama, 1940, (Recompiled 1958).
Mrs. Long on the other hand, contends that the summary judgment proceeding must determine the existence or absence of disputed issues of material fact as measured by the scintilla of evidence rule.
This court has apparently not had occasion to answer the precise question of what effect to give an appellate court determination that a jury verdict is against the great weight and preponderance of the evidence on further litigation. Our sister state of Mississippi has written to this question:
“It is urged upon us here that the former decision is binding because there is no substantial difference in the evidence there and here. This is an erroneous view of the law upon that subject. When a case is reversed upon the ground that the verdict is contrary to the overwhelming weight of the evidence, it is sent back for a new trial, and the court below is not bound in the new trial by the judgment of this court on the weight of the evidence. The jury may find another verdict upon the same evidence, if, in their judgment, it is proper to do so. * * * Universal Truck Loading Co. v. Taylor, 178 Miss. 143, 172 So. 756, 757 (1937). [Emphasis supplied.]
We agree with the soundness of this principle that the trial court is not bound by an appellate determination that the verdict is contrary to the great weight and preponderance of the evidence. To allow any other standard would usurp the role of a jury.
This principle is not new to our jurisdiction. It is the unarticulated, yet fundamental, cornerstone for the established principle that, where successive juries reach the same verdict and' the trial court declines to grant motions for new trial on the ground that the verdict is not supported by the evidence, there is a cumulative effect of presumption of correctness in the jury verdict. Central of Georgia Ry. Co. v. Lee, 227 Ala. 661, 151 So. 840; Southern Ry. Co. v. Morgan, 178 Ala. 590, 59 So. 432; Metropolitan Life Insurance Co. v. Goodman, 196 Ala. 304, 71 So. 409. See 5A C.J.S. Appeal and Error § 1654.
Thus, we hold that the standard as stated in Rule 56(c) for testing whether to grant a motion for summary judgment is the proper standard to be applied in re-trial litigation after an appellate court reversal and remandment on the ground that the verdict is contrary to the great weight and preponderance of the evidence.

This Court’s original reversal and re-mandment was based upon a determination that the verdict was contrary to the great weight and preponderance of the evidence on the theory advanced by the Garmons that the contract was one for the sale of goods. This Court did not have before it a question of whether King Coal was entitled to a judgment as a matter of law. In the first place; King Cole filed no motion for judgment notwithstanding a verdict, and the question of rendition of the cause was not presented to this Court. For a discussion of the standard of judicial and appellate review of motions for a new trial and motions for judgments notwithstanding a verdict, see, Casey v. Jones, 410 So.2d 5 (Ala.1981).

Based on the foregoing, we conclude that the judgment of the trial court granting King Coal’s motion for summary judgment is due to be reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.

      . In the original opinion, this Court framed the issue:
      “Was there adequate evidence to sustain the finding that the defendant breached a contract? We think not.”
      This Court also opined:
      “We are aware that this Court has stated many times that verdicts are presumed to be correct and ‘that no ground in a motion for a new trial is more carefully scrutinized and more rigidly limited than that the verdicMs contrary to the weight or preponderance of the evidence.’ Deal v. Johnson, 362 So.2d 214 (Ala.1978). When a verdict is against the weight or preponderance of the evidence, and is wrong and unjust, this Court may grant a new trial. After reviewing the evidence in this case, we are of the opinion that the Garmons failed to prove by competent evidence that King Coal breached its contract obligations. The evidence is undisputed that the Garmons failed to show that they had produced coal which would meet the contract specifications. The penalty for non-compliance in this case was shown to be rejection of the coal. This Court is convinced that the finding that the defendant breached the contract is wrong and unjust. King’s motion for a new trial should have been granted.”

        King Coal Co., Inc. v. Garmon, 388 So.2d 890 (Ala.1980).


author: JONES, Justice. TORBERT, Chief Justice

text:
    S. O. CHANDLER, et al. v. J. P. CHANDLER.
    80-577.
    Supreme Court of Alabama.
    Dec. 11, 1981.
    Rehearing Denied Feb. 5, 1982.
    William R. Stokes, Jr. of Stokes, Jernigan & Stokes, Brewton, for appellants.
    G. A. Lindsey, Elba, for appellee.
   JONES, Justice.

Appellants (Plaintiffs below) are six of the eight children of J. W. and Maggie Chandler. Appellee, J. P. Chandler (Defendant below), is a brother of Appellants. In June, 1964, the Chandler parents executed a deed purportedly conveying to Maggie an undivided one-half interest in 270 acres for life, reserving unto J. W. an undivided one-half interest for life, with right of survivorship for the lifetime of the survivor, and with remainder in fee simple to their son, J. P. The father and mother lived on the subject property for many years, until they died in 1972 and 1975, respectively.

In May, 1980, this action was commenced, seeking to set aside the deed on grounds of undue influence, mental incapacity of the father (grantor), and “no legal delivery” of the deed. This appeal is from the trial court’s judgment upholding the validity of the deed.

Appellants, per counsel’s brief, state the issue presented for oür review:

“Whether there is a valid delivery of a deed where the deed is held by a third party depositary ‘for safekeeping,’ subject to be returned to the grantors upon request, to be transferred to the grantee upon the death of the grantors.”

If we accept the “. .. subject to be returned to the grantors upon request ...” portion of Appellants’ statement of the issue, unquestionably the trial court committed reversible error. The reserved right of a grantor, who has left the deed with a third party, to retrieve the instrument, and thus revoke the grant, voids delivery of the deed which is essential to its validity as a conveyance. Perkins v. Perkins, 206 Ala. 571, 91 So. 256 (1921).

Appellants’ brief correctly sets forth the applicable “lack of delivery” rules:

“Delivery of a deed is essential to its validity as a conveyance. Perkins v. Perkins, [supra]. Delivery is the final act which consummates the deed, signifying that it is in operation and effect. 23 Am.Jur.2d Deeds § 78. Generally, where the deed is not delivered during the life of the grantor, no right or title is conferred on the grantee. Henslee v. Henslee, 263 Ala. 287, 82 So.2d 222, 226 [1955]. An exception to the general rule is where the grantor delivers a deed to a third party to be delivered to the grantee after the death of the grantor. However, there is no delivery when the deed is merely given to the third party for safekeeping. Culver v. Carroll, 175 Ala. 469, 57 So. 767, 770 (1911); 26 C.J.S. Deeds § 43. If the deed is subject to be recalled by the grantor before delivery to the grantee, there is no effectual delivery by the grantor. Culver, supra, 57 So. at 768.”

Urging our application of these rules to the evidence of record before us, Appellants conclude:

“The deed in this case was held by the Dozier bank ‘for safekeeping,’ according to the head cashier of the bank.... The grantor had the right to go back to the bank and recover the deed.... The trial court failed to recognize the well-established principles of delivery in upholding the sufficiency of delivery, and, thus, ruled incorrectly that the conveyance was valid.”

The well-settled, and equally well-understood, “sufficiency of delivery” principle, where delivery is made to a person other than the grantee or his agent, is discussed in Fitzpatrick v. Brigman, 130 Ala. 450, 30 So. 500 (1900):

“[T]he delivery must be so effectual as to deprive the grantor of the right to revoke it. For so long as he reserves to himself the locus penitentiae, there is no delivery- — no present intention to divest himself of the title to the property. . . . [T]he grantor need not expressly reserve to himself this right to repent, but if his act upon which a delivery is predicated does not place the deed beyond his control, as a matter of law, then his right of revocation is not gone.
“... ‘The law does not presume, when a deed is handed to a third person, that it has been with the intention to pass title to the grantee. In order to make such an act a delivery to the grantee, the intention of the grantor must be expressed at the time in an unmistakable manner.’ —5 Am. & Eng. Encyc. Law (1st ed.), note 4, on p. 448.” Cited with approval and applied in Culver v. Carroll, supra.

We look to the record, then, to test the Appellants’ assertion that “. . . grantors unquestionably did not place the deed beyond their complete control since the third party depositary would have returned the deed had the grantors requested it; thus, the right of revocation was not gone.”

In support of their “lack of delivery” contention, Appellants accurately summarize the evidence:

“The deed in question was not transferred directly to the defendant-grantee, but rather was transferred to the bank vault of the Dozier bank by J. W. Chandler sometime in 1965. Ms. Sport [the head cashier] testified there was only one packet in the Dozier bank vault belonging to J. W. Chandler. She testified that she personally received instructions from J. W. Chandler at the time the deed was put in the vault, . . . [and] that the deed was given to the defendant, pursuant to instructions on a note attached to the deed instructing that the deed be delivered to J. P. Chandler upon the death of J. W. Chandler. . . . Ms. Sport testified that on most of the ‘stuff’ the bank keeps, since it has no safety deposit boxes, ‘you have got to have some kind of instructions as to who to deliver certain items to.’ Questioned further, Ms. Sport stated that, ‘[I]f I delivered the documents to J. P. Chandler, there was some information attached to it....’ Pressed further about the presence of a note, she was asked, ‘Do you remember whether or not there was any .. . ?’ to which Ms. Sport responded, ‘There was or I wouldn’t have delivered them to J. P.’ Asked again, whether she, in fact, remembers a note, she replied, ‘Yes.’ Finally, referring to the presence of a note with instruction, she stated, T told you very distinctly that if I delivered them, that it was on there.’ She stated that instructions on the note .were typed out by another employee of the bank, Mr. Merrill.
“Ms. Sport testified that when a person, such as J. W. Chandler, leaves a deed with the bank, that person has a right to go back and pick that deed up at any time he desires. She was asked whether ‘Mr. Chandler or any other person for that matter [would] have had the right or control to go get the paper from the time that he put them in there at any time prior to [his] death,’ and [she] responded that he would have the right to go to the bank and take back the document. Asked the purpose of having this service such as was provided J. W. Chandler when he transferred his deed to the Dozier bank, Ms. Sport replied, ‘Just for safekeeping.’ ”

The question for our resolution is whether the trial court erred, in the face of Ms. Sport’s testimony relating to J. W. Chandler’s “right to go to the bank and take back the document,” in finding a valid delivery of the deed. We hold that the trial court did not err in "concluding from Ms. Sport’s testimony, when considered along with the totality of the circumstances, that J. W. Chandler, at the time he delivered the deed to the bank for “safekeeping,” possessed the requisite intent to relinquish control over the deed and have it take effect as a present conveyance.

Indeed, we are of the opinion that J. W. Chandler’s unequivocal instruction to the third party to deliver the deed, upon his death, to his son J. P., absent any expression or conduct on the part of the father relative to his right to retrieve the deed, or otherwise exercise control thereof, precluded a contrary finding on the part of the trial court. The policy of the bank in permitting those who left papers in its vault to take such papers back from the bank is not determinative of the grantor’s surrender of control of the instrument in question. The fact of delivery rests in the grantor’s intention, which is an issue of fact to be determined from all the attendant circumstances at the time. Elsberry v. Boykin, 65 Ala. 336, 337 (1880); Fitzpatrick v. Brigman, 133 Ala. 242, 31 So. 940 (2nd appeal 1901).

Here the grantor, for a valuable consideration expressed in the deed, granted a life estate in a one-half interest to his wife, reserved to himself a life estate in the remaining one-half interest (expressly creating a joint tenancy with right of survivor-ship), with the remainder to his son J. P. He delivered the deed to the bank with express instructions (both written and oral) to deliver the deed to J. P. upon the grant- or’s death. The bank’s policy of freely returning such papers upon its customers’ requests is grounded in the nature of the bank’s service to, and relationship with, its customers. Such policy, grounded on institutional good will considerations, is not determinative of the legal requisite of the grantor’s intention to so surrender control of the deed as to effectuate the conveyance.

We are clear to the conclusion, and we so hold, that the trial court acted properly in holding, upon consideration of all the attendant circumstances, that J. W. Chandler intended to deliver the deed to the grantee when he deposited it with the bank and instructed its personnel to deliver it to J. P. Chandler upon the event of the grantor’s death.

Central to our holding is the undisputed fact that the grantor gave express, unequivocal instructions to the third party for delivery of the deed to the named grantee upon a certain future event — the death of the grantor. Given this fact, along with the other attendant circumstances, including the absence of words or conduct reserving the grantor’s right of revocation, the inference of completed delivery, fully executed, is amply sustainable, and in accord with our case law cited above. See, also, Ferrell v. Stinson, 233 Iowa 1331, 11 N.W.2d 701 (1943).

Moreover, the trial judge was warranted under the evidence in finding the requisite delivery as between the grantors and the life tenants without reference to any issue of delivery as between the grantors and the remainderman. Nevertheless, we have addressed the issue of “delivery” as between the grantor (the father) and the remainder-man (the son) in the context of the issue as framed by the pleadings and tried before the trial court and as presented and argued to this Court.

AFFIRMED.

FAULKNER, SHORES, BEATTY and ADAMS, JJ., concur.

TORBÉRT, C. J., and MADDOX, AL-MON and EMBRY, JJ., dissent.

TORBERT, Chief Justice

(dissenting).

I dissent. While the majority correctly set out the law as it has evolved in Alabama, they misapply this law to the facts of this case. The majority states that the testimony of Ms. Sport, an officer of the First National Bank of Dozier, “along with the totality of the circumstances,” shows that J. W. Chandler “possessed the requisite intent to relinquish control over the deed” to have it operate as a valid conveyance. This is simply not the case.

For the delivery to be complete, the grantor must completely divest himself of any control over the title. As long as he reserves to himself the locus penitentiae, whether by express reservation or by not placing the deed beyond his control, then as a matter of law he has not foregone his right of revocation. Fitzpatrick v. Brigman, 130 Ala. 450, 30 So. 500 (1900).

The case of Culver v. Carroll, 175 Ala. 469, 57 So. 767 (1911), best described the prerequisites for valid delivery:

Perhaps the clearest and completest statement of the law on this subject is the following, by Dowling, J., in Osborne v. Elslinger, 155 Ind. 351, 360, 58 N.E. 439, 442, 80 Am.St.Rep. 240, 247: “Where the claim of title rests upon the delivery of the deed to a third person, the deed must have been properly signed by the grantor, and delivered by him, or by his direction, unconditionally, to a third person for the use of the grantee, to be delivered by such person to the grantee, either presently, or at some future date, or upon some inevitable contingency, the grantor parting, and intending to part, with all dominion and control over it, and absolutely surrendering his possession and authority over the instrument, so that it would be the duty of the custodian or trustee for the grantee, on his behalf, and as his agent and trustee, to refuse to return the deed to the grantor, for any purpose, if demand should be made upon him. And there should be evidence beyond such delivery of the intent of the grantor to part with his title, and the control of the deed, and that such delivery is for the use of the grantee. If the deed is placed in the hands of a third person, as the agent, friend, or bailee of the grantor, for safe-keeping only, and not for delivery to the grantee; if the fact that the instrument is a deed is not made known to such third person, either at the time it is handed over, or at any time before the death of the grantor; if the name of the grantee, or other description of him, is not given; and if there is no evidence beyond the mere fact of such delivery of the intent of the grantor to part with his control over the instrument and his title to the land — then such transfer of the mere possession of the instrument does not constitute a delivery, and the instrument fails for want of execution.”

175 Ala. at 476-77, 57 So. 767.

While J. W. Chandler did leave instructions to the bank to deliver the deed upon his death, it is without doubt that the bank held the deed only for safekeeping and that he retained control over the deed. Ms. Sport testified that the deed was in a file at the bank under the name of Mr. J. W. Chandler at the time of his death in 1972. She stated that this was done as part of the normal service rendered by the banks in that area, since these banks do not have safe deposit boxes. When specifically questioned about the issue of control, the following ensued:

Q. Ms. Sport, I will ask you ma’am, would Mr. Chandler or any other person, for that matter, have the right or control to go get the papers from the time that he put them in there at any time prior to their death?
A. Why, sure.
Q. Would you tell the Court the purpose of your bank having this for your customers, please?
A. Just for safekeeping.
Q. Thank you.

From this testimony, it is quite obvious that Mr. Chandler did not place the deed beyond his control. Thus, as a matter of law his right of revocation was not gone and no finding of a valid delivery could have been made. Culver v. Carroll, 175 Ala. 469, 57 So. 767 (1911); Fitzpatrick v. Brigman, 130 Ala. 450, 30 So. 500 (1900). See also, Johnson v. Bridges, 333 So.2d 813 (Ala.1976); Elsberry v. Boykin, 65 Ala. 336 (1880).

Had J. W. Chandler deposited the deed into a personal safe deposit box, there is no question that the delivery would not have been complete. Here, however, the bank had no safe deposit boxes, but held documents in special files for its customers. Ms. Sport’s testimony shows that these files are the functional equivalent of safe deposit boxes. Therefore, there can be no doubt that J. W. Chandler still had the deed within his control and possession.

For these reasons, I cannot agree that there was a valid delivery of the deed. Thus, I would reverse the holding of the trial court.

MADDOX, ALMON and EMBRY, JJ., concur.


author: MADDOX, Justice. MADDOX, Justice.

text:
    Patrice RYAN v. CHARLES TOWNSEND FORD, INC., et al.
    80-893.
    Supreme Court of Alabama.
    Dec. 18, 1981.
    Rehearing Denied Feb. 5, 1982.

      Thomas S. Wilson, Tuscaloosa, for appellant.
    Wilbor J. Hust, Jr. of Zeanah, Donald & Hust, Tuscaloosa, for appellees.
   MADDOX, Justice.

This appeal questions the propriety of the granting of defendants’ summary judgment motion on claims by the plaintiff of fraud, breach of express warranty, and breach of implied warranty in the sale of an automobile.

On January 8, 1980, plaintiff Patrice Ryan purchased a previously-leased Honda automobile from defendant Charles Townsend Ford, Inc. She claimed that the defendant salesman Scott Lynn represented to her that this particular automobile delivered 36 miles per gallon on the highway and 26 miles per gallon in the city. Plaintiff claimed that when she asked if the people who had leased the car had gotten this kind of mileage, defendant Lynn stated that he “had not had any complaints from them, but he did not know.”

Plaintiff contended that the following weekend, when she drove the automobile to Ohio, she realized that she was only receiving 22 to 25 miles per gallon of gasoline. On her return, she had the car serviced by defendant dealership, and complained that she was not getting the higher ratio of miles to the gallon, that is, 36 m. p. g. and 26 m. p. g. She took more trips in January, 1980, and on each occasion, she recorded mileage of 22 and 25 m. p. g. She returned the car several times to defendant dealership for adjustment. On a service appointment on or around February 19, 1980, a service employee of Townsend told plaintiff that this car was not designed to get 36 m. p. g. on the highway and 26 m. p. g. in the city. Plaintiff continued to drive the car for a year from this February date, and except for the complaint about the mileage, she had no other complaints. She filed the subject claim for damages on February 13, 1981. In her complaint, she alleged fraud, breach of contract, breach of implied warranty, and amended her complaint later to include breach of express warranty. Plaintiff claimed $7,116.90, the price of the car, in actual damages, and $10,000, in punitive damages on the fraud count. Defendants’ motion for summary judgment on all counts was granted May 26, 1981. From this final order, the plaintiff appealed the judgment and claimed the court erred as to all counts except the count which claimed breach of contract.

The sole issue is the propriety of the granting of the summary judgment motion in favor of the defendants.

It is a long-established rule in this state that on motions for summary judgment, the movant has the burden of negating the existence of any issue of material fact; Plant v. Reid, Inc., 365 So.2d 305 (Ala.1978); Worley v. Worley, 388 So.2d 502 (Ala.1980), and if there is a scintilla of evidence supporting the non-moving party, summary judgment is inappropriate. Studdard v. South Central Bell Tel. Co., 356 So.2d 139 (Ala.1978). In determining the existence of genuine issues of material fact, the record must be viewed by this Court in a light most favorable to the non-moving party. Papastefan v. B & L Const. Co., Inc. of Mobile, 356 So.2d 158 (Ala.1978).

An action for fraud is tolled by a one-year statute of limitations, the period commencing to run when there is discovery by the plaintiff of the set of facts which comprise the fraud. Code 1975, § 6-2-3. This is a “saving provision,” which extends the time period for a right of action when there has been a fraudulent concealment; however, this Court stated in Johnson v. Shenandoah Life Insurance Co., 291 Ala. 389, 281 So.2d 636 (1972), that discovery is made when facts become known “which provoke inquiry in the mind of a man of reasonable prudence, and which, if followed up, would have led to a discovery of the fraud”; therefore, “fraud is deemed to have been discovered when it ought to have been discovered.”

Defendants allege that plaintiff discovered the alleged fraud, if indeed there was fraud, on her first trip to Ohio in January, 1980, and that any action upon those facts must be commenced within one year from that date. If this is so, plaintiff’s suit would be barred, as she filed suit February 13, 1981. Defendants point to plaintiff’s affidavit in opposition to the motion for summary judgment in support of their contention that discovery was had in January, 1980. Plaintiff’s affidavit does read, in part, as follows:

I discovered shortly after January 8, 1980, that the car was not getting the mileage it was supposed to, and I took it back for service and told the service manager at Townsend Ford Inc. that the car was not getting the gas mileage it was supposed to.

Defendant argues further that § 6-2-3 is but a saving statute and plaintiff’s failure to contend that there was any fraudulent concealment takes her claim out of the saving provision.

Plaintiff counters that even though she knew she was not getting the gas mileage represented to her in January, 1980, she did not discover she had been defrauded until February 19, 1980. In her affidavit she states:

I again checked the gas mileage after this occasion and it was still not getting the gas mileage it was supposed to, so I again took the car in for service. I took it in for service several times during the months of January and February 1980.
On or around the 19th day of February 1980, a mechanic at Townsend Ford, Inc., told me that the Honda automobile made the basis of this suit was not designed to get thirty-six miles per gallon on the highway and twenty-six (26) in the city, and that there was nothing mechanically wrong with the automobile.
I am not an expert on car design and I did not discover that the Honda automobile was not designed to get the promised gas mileage until around the 19th day of February 1980. Until that time I thought there was something mechanically wrong with the car.

She contends that her filing this action on February 13, 1981, is timely in that the applicable date of discovery is February 19, 1980.

There is a dispute between the parties as to the date of discovery; therefore, there is a genuine issue of fact to be decided by a trier of fact. In Loch Ridge Construction Co., 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.”

The evidence presented in this case on the matter of fraud is also conflicting, and presents a proper question for the factfinder. Summary judgment here is inappropriate and constitutes reversible error.

The granting of summary judgment on the breach of express warranty claim was also erroneous and is reversed. When evidence is in conflict as to whether an express warranty exists, then the question is one for the factfinder, Lollar v. Jones, 229 Ala. 329, 157 So. 209 (1934). Van Antwerp-Aldridge Drug Co. v. Schwarz, 263 Ala. 207, 82 So.2d 209 (1955).

Plaintiff states in her deposition and affidavit that an oral express warranty was created by defendant Lynn’s statements concerning the gas mileage. Defendants state in their answer that all warranties, either express or implied, were effectively excluded by the disclaimer clause which plaintiff read and signed. The evidence was conflicting on whether there was an express warranty. Summary judgment was improper on this claim.

The granting of summary judgment on the breach of implied warranty claim was not erroneous.

REVERSED AND REMANDED.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.

ON REHEARING

MADDOX, Justice.

In brief, on application for rehearing, counsel for Charles Townsend Ford states that this Court’s opinion will “have the effect of subjecting every car dealer to a barrage of lawsuits even when the salesman tells the customer the truth about his knowledge of the past performance of the vehicle.” Suffice it to say that on original deliverance, we were not unmindful of the facts presented by the car dealer in support of its motion for summary judgment, but we point out again that the sole issue presented on this appeal was the propriety of the trial court’s granting of the car dealer’s motion for summary judgment. In Alabama, the standard set out in Rule 56(c), A.R.C.P. is that summary judgment may be granted only when the materials on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In applying this test, we must give effect to Alabama’s “scintilla of evidence” rule, which states that if there is a scintilla of evidence supporting the position of the party against whom the motion is made, so that a trial he would be entitled to goes to the jury, summary judgment cannot be granted.

The opinion in this case is based solely upon the principles of law applicable to summary judgments in Alabama and obviously does not address questions of law which might be presented by motions made during the trial or post-trial pursuant to the provisions of Rule 50 or Rule 59, A.R.C.P. In other words, the original opinion addresses solely the question of the propriety of the grant of a motion for summary judgment and nothing more.

OPINION EXTENDED; REHEARING DENIED.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.


author: SHORES, Justice.

text:
    FIDELITY AND CASUALTY COMPANY OF NEW YORK, a corporation v. CENTRAL BANK OF BIRMINGHAM.
    80-427.
    Supreme Court of Alabama.
    Jan. 22, 1982.
    Thomas R. Elliott, Jr. of London, Yancey, Clark & Allen, Birmingham, for appellant.
    Stanley M. Brock of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellee.
   SHORES, Justice.

This is an appeal from a judicial determination as to which party has priority to money paid in settlement of a contract action between a contractor, Henry C. Beck Company, and a subcontractor, Lewis Powell Enterprises. The competing parties are the Central Bank of Birmingham (Central Bank) and Fidelity and Casualty Company of New York (F & C). Central Bank had a perfected security interest covering all inventory, accounts receivable, and contract rights, together with proceeds and products thereof, of Powell Enterprises. F & C issued a performance bond and a labor and material payment bond for Powell Enterprises, as called for in a contract between Beck and Powell Enterprises.

This appeal involves three consolidated actions filed in circuit court, which were: (1) A receivership proceeding brought by Lewis Powell individually against Powell Enterprises; (2) an action by Powell Enterprises against Beck for breach of contract; and (3) an action by Trust Company Bank as assignee of Stratton Industries (a material supplier) against Powell Enterprises, Beck, and F & C.

The receivership proceeding adjudicated the validity of a claim by Central Bank against Powell Enterprises. The court decreed that the Bank’s claim in the sum of $191,592.42 was a valid secured claim superior to all claims other than administrative expenses.

Both Central Bank and F & C intervened in the contract action filed by Powell Enterprises against Beck. Each claimed that it had a priority to the contract funds. Central Bank’s claim rested on its security interest which was perfected prior to the contract. F & C’s claim was based upon principles of equitable subrogation arising out of the fact that F & C bonded the contract which was the subject of the action and, further, that F & C had suffered judgment in the bond action by Trust Company Bank in the sum of $38,016.23 because of Powell Enterprises’ failure to pay a material supplier for carpet used in the project.

The contract action was settled for $40,-000. All parties entered into an agreement providing for payment of $10,000 of the $40,000 fund as attorneys’ and receiver’s fees.

The evidence regarding the competing claims of Central Bank and F & C to the $30,000 was heard in open court. Both the bank and F & C submitted briefs on the subject of their respective entitlements to the fund. The contract between Beck and Powell Enterprises contained the provisions that are pertinent to this appeal:

“1. Subcontractor agrees to furnish and pay for all materials, labor, scaffolding, equipment, tools, appliances, and everything necessary to fully do and complete the work described in paragraph 2 hereof, for Data Center, Birmingham, Alabama, located at 1876 Data Drive, Jefferson County, Alabama, for South Central Bell Telephone Company, hereinafter called Owner, in accordance with the General Conditions of the Contract between the Owner and the Contractor....
“3. The Contractor agrees to pay the Subcontractor for the performance of his work the sum of $280,874.00 and to make payments on account thereof as follows: on or about the 25th day of each month, 90% of the value of labor and materials incorporated by Subcontractor in the work and of materials stored on the job site in a manner acceptable to Contractor, and for which payment has been made by the Owner to Contractor, less the aggregate of previous payments; and the balance of the contract price shall be paid to the Subcontractor upon completion of all of the Subcontractor’s work, acceptance thereof by the Owner, furnishing to Contractor of satisfactory evidence by Subcontractor that all labor and material accounts incurred by Subcontractor in connection with his work have been paid in full, and receipt of final payment therefor by the Contractor from the Owner. . . .
“11. Payments otherwise due may be withheld by Contractor on account of defective work not remedied, claims filed, reasonable evidence indicating probability of filing of claims, failure of Subcontractor to make payments properly to its subcontractors or for material or labor, or a reasonable doubt that the subcontract can be completed for the balance then unpaid. .. .
“18. Subcontractor shall provide Payment and Performance Bonds on the form prescribed by and with surety acceptable to the Contractor in the full amount of this subcontract for the faithful performance of this subcontract. The premium for bonds shall be paid by Subcontractor.” (Emphasis added.)

The trial court entered an order which, in pertinent part, said:

“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED as follows:
“1. The claim of Central Bank of Birmingham in the sum of $191,592.42 is superior and prior in right to the claims of Fidelity & Casualty Company of New York and the Internal Revenue Service to the $30,000.00 fund now on deposit with the Register in Chancery, representing the proceeds of the settlement of the case of Lewis Powell Enterprises, Inc. v. Henry C. Beck Company.”
F & C’s appeal followed. We reverse.

The single issue in this appeal is whether the trial court erred in its determination that Central Bank had a superior and prior right to the $30,000.00.

In its assertion that the trial court was correct, Central Bank raises two main arguments. First, although it recognizes that Article 9 of the Uniform Commercial Code is not applicable in this situation, nevertheless, Central Bank argues that it still had a superior right to the $30,000.00 because it had a perfected security interest covering the accounts receivable and contract rights of Powell Enterprises as of December 8, 1977, while F & C’s bond was not issued until September 18,1978. Therefore, it has priority to any proceeds owing to Powell under the contract through the application of the “first in time, first in right” rule of common law. Secondly, assuming arguen-do, that the “first in time” rule does not apply to equitable subrogation, Central Bank argues that F & C still would not be entitled to the money because a necessary element of equitable subrogation is a default by the primary party, and in this situation, Powell Enterprises was never in default. In support, Central Bank points out that the court’s order wherein the court, after acknowledging that “clearly the principal of equitable subrogation is recognized in Alabama,” by way of Citizens Bank of Guntersville v. Pearson, 217 Ala. 391, 116 So. 350 (1927), attempted to distinguish the case at hand by saying:

“Thus, in the Citizens Bank of Gunters-ville case there were two important facts on which the Court based its decision; the fact that the assignment was made after the bond was written and the fact that the surety company—not the contractor—completed the work and earned the right to payment under the contract. Neither of those facts is present in this case.”

We cannot agree with either of Central Bank’s arguments. While we are mindful of the applicable scope of review through the ore tenus rule, Sterling Oil of Oklahoma, Inc. v. Pack, 291 Ala. 727, 287 So.2d 847 (1973), we nevertheless hold that the trial court’s decision that F & C had not completed the terms of the contract after a default by Powell Enterprises is clearly wrong. Powell Enterprises was obligated under the contract to pay its material suppliers. A failure to make such a payment breached the contract. Beck had the right under the bonded contract to withhold payment to Powell Enterprises until all material suppliers were paid. The very fact that F & C was ordered to pay the money to the representative of the materialmen establishes that Powell Enterprises defaulted under the bonded contract. We do not say that the court was incorrect in its determination that the contract was performed. It was performed, but only by F & C’s payment as surety for Powell Enterprises.

The surety’s right to equitable sub-rogation exists whether a surety steps in and physically completes the contract or whether it merely pays the laborers and materialmen under the contract. See, Maryland Casualty Company v. Dupree, 223 Ala. 420, 136 So. 811 (1931); Pearlman v. Reliance Insurance Company, 371 U.S. 132, 83 S.Ct. 232, 9 L.Ed.2d 190 (1962).

Moreover, since the surety’s equitable subrogation rights, upon default of its principle contractor, arise by operation of law rather than by contract, First Alabama Bank of Birmingham v. Hartford Acc. & Indem. Company, Inc., 430 F.Supp. 907 (N.D.Ala.1977), Central Bank’s argument for the application of the “first in time, first in line” rule is not well taken. The contract authorized the owner to make payments to the material supplier and to offset any sums to Powell for the payment. F & C, which was obligated to complete the contract through payment to materialmen, was subrogated not only to the obligation of Powell Enterprises to pay suppliers, but also to the right of the owner to offset any sums to Powell Enterprises for payment. See, Citizens Bank of Guntersville v. Pearson, supra; Pearlman v. Reliance Insurance Company, supra; Travelers Indemnity Company v. West Georgia National Bank, 387 F.Supp. 1090 (N.D.Ga.1974).

Therefore, the contract funds which were in the hands of Beck did not belong to Powell Enterprises once it had failed to pay the material supplier. F & C, through its obligation to pay under the bond, is entitled to the funds, and not Powell Enterprises or Central Bank, claiming through Powell Enterprises. It makes no difference in this situation when the Bank’s assignment was perfected because there is nothing owing to Powell Enterprises to pass by virtue of the assignment. This cause is reversed and remanded.

REVERSED AND REMANDED.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


text:
    Dorothy Mae SCOTT v. Martin L. LANE, et al.
    80-476.
    Supreme Court of Alabama.
    Jan. 22, 1982.
    Douglas Inge Johnstone of Johnstone & Newton, Mobile, for appellant.
    Brock B. Gordon and Celia J. Collins of Johnstone, Adams, May, Howard & Hill, Mobile, for appellees Martin L. Lane, Edward L. Bryant, J. Russell Eubanks, Jr., Frank M. Dulaney and Mobile Anesthesiologists.
    Frank McRight and Michael L. Fees of McRight, Sims, Rowe & Stewart, Mobile, for appellee Jeff Lousteau.
   MADDOX, Justice.

What constitutes sufficient consideration to prevent a contract of permanent employment from being terminable at the will of the employer? That is the sole issue presented by this appeal.

Plaintiff/appellant, Dorothy Mae Scott, filed a suit against several doctors and Mobile Anesthesiologists, an unincorporated association, in which she claimed that they had offered her permanent employment if she would resign from her employment with two other doctors.

As is apparent from the allegations of the complaint, which are set out in the footnote, the plaintiff claimed that the defendants offered her permanent employment, that she accepted it, and that as consideration for the contract of permanent employment, she resigned her previous employment, and that the defendants had knowledge that she would resign her previous employment.

Plaintiff relies almost entirely upon the case of Alabama Mills, Inc. v. Smith, 237 Ala. 296, 186 So. 699 (1939). Because many of the principles of law relating to contracts of permanent employment are summarized in the Alabama Mills case, we set out extensively portions of the opinion in that case:

“Appellant contends that a contract by which plaintiff should have the privilege of working for defendant at the stipulated amount of wages as long as he wanted to do so, was too indefinite to be operative, except for the services which were rendered and without mutuality; and if otherwise valid, though its terms are denied, as plaintiff contends they were, that they were made by one without sufficient authority to bind appellant to that extent.
“With respect to the first contention, we will endeavor to find an exact meaning of such a contract as that stated in plaintiff’s testimony. A leading case upon that subject is Carnig v. Carr, 167 Mass. 544, 46 N.E. 117, 35 L.R.A. 512, 57 Am.St.Rep. 488. It was said that what they meant by a permanent employment was so long as defendant was engaged in the same nature of business and needed the service of such an employee, and plaintiff was able and willing to do it satisfactorily and gave no cause for his discharge. So construed, it was said the contract was capable of enforcement. We have had occasion to consider contracts of a similar sort, but which differ in a material respect. Our case of Peacock v. Virginia-Carolina Chemical Co., 221 Ala. 680, 130 So. 411, reviews many of the authorities on the subject. The general rule is there referred to that an indefinite hiring is presumed to be at the will of either party, in the absence of custom or facts showing a contrary intention. The question there, as in many cases, was whether an employment is such as that compensation which is payable by the week, or month or year, implies a minimum period equal to such as is thus named. Clark v. Ryan, 95 Ala. 406, 11 So. 22; National Life Ins. Co. v. Ferguson, 194 Ala. 658, 69 So. 823.
“Undoubtedly a contract of employment which is in a true sense indefinite and without stipulation for an implied minimum period, is at the will of either party. 18 R.C.L. 508, section 19, and page 509, section 20; Howard v. East Tennessee, V. & G. R. Co., 91 Ala. 268, 8 So. 868; Arentz v. Morse Dry Dock & Repair Co., 249 N.Y. 439, 164 N.E. 342, 62 A.L.R. 231.
“But if the terms of the employment are that the period of service shall be permanent, or as long as the employee wishes, the status is not so much that the service is for an indefinite period, but the question is whether the contract as made for a period of time to be fixed by the will of the employee is mutual in its operation and based upon a sufficient consideration. With respect to that situation, 18 R.C.L. 510, states the rule as follows: ‘Under some circumstances, however, “permanent” employment will be held to contemplate a continuous engagement to endure as long as the employer shall be engaged in business and have work for the employee to do and the latter shall perform the service satisfactorily. This seems to be the established rule in case the employee purchases the employment with a valuable consideration outside the services which he renders from day to day. Not infrequently contracts by railroad companies to furnish “steady and permanent” employment to employees in consideration of the relinquishment of claims by the employees against the companies have been construed to show an agreement on the part of the company to furnish the employee with employment as long as the latter is able, ready and willing to perform such services as the company may have for him to perform. The fact that the employee has a right to quit work at his option does not give the employer a reciprocal right to terminate the contract at pleasure, since the employee, by releasing his claim, has paid a valuable consideration for the option.’
“It is likewise so analyzed in Rape v. Mobile & O. R. Co., 136 Miss. 38, 100 So. 585, and in the annotation in 35 A.L.R. 1422 et seq.; Roxana Petroleum Co. v. Rice, 109 Okl. 161, 235 P. 502; notes in 62 A.L.R. 234; Fisher v. John L. Roper Lumber Co., 183 N.C. 485, 111 S.E. 857, 35 A.L.R. 1417; Evans v. Cincinnati, S. & Mobile Ry. Co., 78 Ala. 341.
“When a person purchases such a contract for a valuable consideration other than the service to be rendered for which he is to receive compensation, there is no reason to suppose that it is not as binding as any other contract thus supported. If he has purchased a contract by which his employer leaves the period of duration to him, it resembles the purchase of other sorts of option rights, subject to the limitation impliedly included that the employer shall continue in such business and need the things to be done, which the employee is to do. In other words, such employee must have a preference over others in doing that sort of work.
“The nature of consideration which will uphold such a contract is right generally discussed in the cases above cited. They lead to the conclusion that if the hirer knows that the person being employed then has employment, and that he is giving it up to engage in his new work under the new contract, a valuable consideration is shown." [Emphasis added.]

The defendants contend that the statement in Alabama Mills that “.. . if the hirer knows that the person being employed then has employment, and that he is giving it up to engage in his new work under the new contract, a valuable consideration is shown . . .,” is dictum, and is “inconsistent with the holding which is evident from reading the case in its entirety.” The defendants argue that Alabama Mills, “read in its entirety and interpreted according to the legal authority upon which it relies and subsequent statements of the Alabama Supreme Court,” holds that something more than an employer’s knowledge that an employee is relinquishing his former employment to engage in new employment is required to constitute consideration sufficient to render a contract for permanent employment enforceable.

This Court has had occasion to consider the question of permanent employment contracts on several occasions. The cases which discuss in some detail the principles of law regarding contracts of employment for an indefinite duration are: Alabama Mills, supra; United Security Life Insurance Co. v. Gregory, 281 Ala. 264, 201 So.2d 853 (1967); National Union Life Insurance Co. v. Ingram, 275 Ala. 310, 154 So.2d 666 (1963).

In United Security Life Insurance Co., this Court quoted the following passage from National Union Life Insurance Co.:

‘In regard to a contract for life employment, the majority rule seems to be that two elements must be shown to exist before such a contract can be held enforceable. First, it must appear that there was a consideration of substantial value, independent of any service to be performed, and in making that determination the courts inquire into the actual value of the consideration. Second, where the promisor is a corporation, in the absence of ratification or estoppel, it must appear that the individual or individuals who acted on behalf of the corporation had actual, as opposed to implied, authority to bind the corporation. Alabama Mills [Inc.] v. Smith, 237 Ala. 296, 186 So. 699; Chesapeake & Potomac Tel. Co. of Baltimore City v. Murray, 198 Md. 526, 84 A.2d 870; Heaman v. E. N. Rowell Co., 261 N.Y. 229, 185 N.E. 83; Carney v. New York Life Ins. Co., 19 A.D. 160, 45 N.Y.S. 1103, affirmed 162 N.Y. 453, 57 N.E. 78; Rennie v. Mut. Life Ins. Co. of N. Y., 1 Cir., 176 F. 202; * * * [further citations omitted].’ ”

This Court has said on at least three occasions that:

“When a person purchases such [a contract of employment for an indefinite period of time] for a valuable consideration other than the service to be rendered for which he is to receive compensation, there is no reason to suppose that it is not as binding as any other contract thus supported. If he has purchased a contract by which his employer leaves the period of duration to him, it resembles the purchase of other sorts of option rights, subject to the limitation impliedly included that the employer shall continue in such business and need the things to be done, which the employee is to do.”

United Security Life Ins. Co. v. Gregory, 281 Ala. 264, 266, 201 So.2d 853, citing Alabama Mills, Inc. v. Smith, supra, 237 Ala. at p. 299, 186 So. at p. 702; National Union Life Insurance Co. v. Ingram, 275 Ala. 310, 317, 154 So.2d 666, 672 (1963).

We are aware that some courts will not recognize that knowledge by the employer “that the person being employed then has employment, and that he is giving it up to engage in his new work under the new contract” is valuable consideration. Alabama does; therefore, the trial court erred in granting defendant’s motion to dismiss plaintiff’s “fourth cause of action.”

REVERSED AND REMANDED.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.

      . The allegations of the complaint, which the trial court dismissed for failure to state a claim, are as follows:
      “On or about January 1, 1970, the Defendants offered the Plaintiff permanent employment with the Defendants, and the Plaintiff accepted said employment, and the Plaintiff and the Defendants thereby made a contract for said employment, under the mutually agreed terms that the Plaintiff would then resign from the gainful employment she then had with Doctors Abel L. Johnson and Julia Box, hereinafter sometimes called “Johnson and Box,” that the Defendants would employ the Plaintiff as a nurse-anesthetist for the Defendants for as long as the Plaintiff should wish to continue said employment with the Defendants, and that the Defendants would pay the Plaintiff compensation for her said efhployment with the Defendants, said compensation to consist of salary at the rate of one thousand dollars ($1,000) per month plus' commissions at the rate of thirty percent (30%) of all sums charged to and collected from the Defendants’ patients in all cases wherein the Plaintiff rendered services to those patients in the performance of the Plaintiffs said employment with the Defendants, said compensation to be paid the Plaintiff monthly throughout her said employment;
      “In return and as consideration for the aforesaid contract and for the Defendants’ aforesaid promises of permanent employment and compensation therefor, the Plaintiff resigned her gainful employment by and with Johnson and Box, where she was gainfully employed at the time she and the Defendants made and entered the aforesaid contract;
      “When the Defendants made the aforesaid contract with the Plaintiff as aforesaid, the Defendants knew that the Plaintiff then had the aforesaid employment with Johnson and Box and that the Plaintiff would necessarily resign said employment with Johnson and Box to engage in the Plaintiffs new employment with the Defendants under the aforesaid contract made by the Defendants with the Plaintiff;
      “The Defendants’ aforesaid knowledge that the Plaintiff would necessarily resign from her employment with Johnson and Box together with the Plaintiff’s aforesaid actual resignation from said employment to engage in her new employment with the Defendants as aforesaid constitute the Plaintiffs consideration to the Defendants for the aforesaid contract and for the Defendants’ aforesaid promises of permanent employment and compensation;
      “The Plaintiff faithfully performed her aforesaid employment with the Defendants from January 1, 1970, or thereabout until March 9, 1979, or thereabout, on which later date the Defendants breached the aforesaid contract by discharging the Plaintiff from her aforesaid employment with the Defendants without reasonable cause for such discharge and by terminating the payment of the compensation theretofore promised, as particularly stated herein, by the Defendants to the Plaintiff for such employment;
      “Before the Plaintiffs aforesaid discharge by the Defendants, the Plaintiff and the Defendants had mutually amended the aforesaid contract for permanent employment in the sole particular that the salary portion of the Plaintiff’s aforesaid compensation was increased from one thousand dollars ($1,000) to twelve hundred dollars ($1,200) per month, and the Plaintiff and the Defendant had retained and continued all other terms of said contract and compensation in full force and effect;
      “Pursuant to the aforesaid contract for permanent employment, as amended as aforesaid, the Plaintiff was earning approximately twenty-seven hundred dollars ($2,700) per month from the Defendants at the time of her aforesaid discharge;
      “At the time of the Defendants’ aforesaid breach of contract, the Plaintiff was ready, willing and able to continue performing her aforesaid employment with the Defendants pursuant to the aforesaid contract for 15 more years;
      “The Defendants’ aforesaid breach of contract has damaged the Plaintiff by depriving her of the compensation due to accrue to her pursuant to the aforesaid contract following the date of the Plaintiffs aforesaid discharge from employment and cessation of compensation by the Defendants;
      “Throughout the time the Plaintiff performed her aforesaid employment with the Defendants as aforesaid, they failed to pay her all she was due in commissions accruing pursuant to the aforesaid terms of the aforesaid contract, and the Defendants refused to allow the Plaintiff to inspect the Defendants’ records on the data from which the Plaintiffs said commissions were to be calculated, even though the Plaintiff duly demanded full payment of said commissions and inspection of said records;
      “WHEREFORE the Plaintiff demands an accounting by the Defendants and judgment against the Defendants, jointly and severally, in the sum of Seven Hundred Thousand Dollars ($700,000) as damages plus interest and costs of court.”


author: JONES, Justice.

text:
    STATE of Alabama v. Jeanette W. WRIGHT and W. T. Weathers.
    80-515.
    Supreme Court of Alabama.
    Jan. 22, 1982.
    John A. Tinney, Roanoke, for appellant.
    Andrew W. Bolt, II of Wilson, Bolt, Isom, Jackson & Bailey, Anniston, for appellees.
   JONES, Justice.

This is an appeal from an adverse declaratory judgment holding that Appellant State of Alabama is required to purchase the right of way across Appellees’ property.

The State of Alabama filed a declaratory judgment action after a dispute arose concerning whether the State had previously acquired a right of way across Jeanette W. Wright’s and W. T. Weathers’s property. The State contends that the disputed property, situated between the fronts of Wright’s and Weathers’s homes and the present highway, had been dedicated for roadway purposes by virtue of a plat located in the tax assessor’s office in the Randolph County Courthouse. Wright and Weathers claim that the plat did not dedicate the disputed property; thus, the State would be required to pay for any of their property taken for a right of way.

Under the “Argument” section of his brief, Appellant’s counsel summarizes the issue and candidly states the government’s burden in challenging the trial court’s resolution of that issue:

“The real and only issue before this Court is whether the State will have to compensate Weathers and Wright for the land embraced within their front yards through which a new portion of U. S. Highway 431 is being constructed. If the Court holds that the plat in question did not dedicate the streets and alleys as shown on the plat for right of way purposes, then the State must pay Weathers and Wright for acquisition of the property shown on the plat as a street. If the Court holds that the plat dedicated the streets and alleys shown on the plat for public right of way purposes, then the State will not have to compensate Weathers and Wright for the right of way over the property in question.
“The fact that the Randolph County Courthouse burned in 1897 greatly complicates the matter before the Court. The length of time and subsequent death of persons since this time further complicates the matter in trying to decide whether the statutory requisites for dedication of the right of way in question have been complied with.
“The only means by which the State of Alabama could possibly show a statutory dedication of the land in question would be by calling the Probate Judge of Randolph County who was serving in the 1800’s or early 1900’s when the plat in question first appeared in the Probate Office or by calling the original owners of the property in question for them to state their intent or by calling Mr. Pitman, the County Surveyor, who without doubt prepared the plat in question. Because all of these people have long since passed away, the State’s avenue to show a proper dedication would be through circumstantial evidence.”

Counsel then recites multiple circumstances tending to prove that the “Pitman Plat” meets the statutory requirements for public dedication of the right of way in question. These statutory requisites are prescribed by Code 1975, §§ 35-2-50, -51, -52, which have remained essentially unchanged since 1896.

Appellant aptly poses the statutory inquiries, and then argues the circumstantial evidence relative to each inquiry:

“1. Was the plat recorded in the Probate Judge’s office? The plat was removed from the Probate Judge’s office and was contained in a plat book found in the Probate Office which had been there for a number of years. The State contends that the plat in question was not just ‘lying around’ the Probate Office but had been received by the Probate Judge, placed in a plat book and marked as being recorded. The State contends that the Probate Judge or Office at the time this document was received would have recorded it according to the laws applicable at the time under the bound duty to do so.
“2. Was the plat certified by a survey- or as required by statutes? — Mr. Bartlette was greatly disturbed that someone in the last six months had removed the surveyor’s certification. He testified that the certification of the plat was the same as that on the certification of the plat of the Town of Woodland which was also prepared by the same surveyor, Mr. Pit-man. To the best of his memory it named Mr. Pitman as County Surveyor and certified, that it was a true and correct copy of the plat of the Town of 'Wedowee.
“3. Was this certified by the owner?— Mr. Barlett testified that he could not remember whether the owners’ signatures appeared on this plat. The owners’ certification, the State submits, was trimmed off when this plat was removed from Plat Book 1 to Plat Book 2. This could be the only logical inference since this plat has always been recognized by everyone as being the true and correct plat of the Town of Wedowee.
“4. Were the streets sufficiently defined and lots sufficiently identified to comply with the statutes?- — An examination of the plat reveals that the streets are set out, are presently located in the location described on the plat and lots referred to in the plat are in fact the size and in the location located on the plat.
“We submit that the State has offered every possible piece of circumstantial evidence to indicate that the plat had been properly, statutorily dedicated at the time it was originally placed in the Courthouse in Wedowee.”

Admittedly, considerable weight should be given to these circumstances as they relate to parties who acted with reference to the “Pitman” survey here relied upon by the State. The validity of each of these cited circumstances, however, depends upon a common premise: that the “Pitman Plat” before the trial court is, in fact, a true and correct copy of the plat of the Town of Wedowee at a time pertinent to the title of these Appellees. Any inquiry that presupposes this premise begs the question, for this was the ultimate dispositive issue presented to the trial court.

Appellees are brother and sister, whose father was their common grantor; and his title predates any known existence of the “Pitman Plat.” The trial judge was not concerned with the common references and other usages of the “Pitman” survey; rather, his concern was whether the Appellees’ grant, referencing the plat of the Town of Wedowee, was a reference to the “Pitman Plat,” which is an unsigned, uncertified, and unrecorded copy of a survey whose known existence post-dates the Appellees’ grantor’s title. See Stack v. Tennessee Land Co., 209 Ala. 449, 96 So. 355 (1923).

Moreover, the deeds to Appellees’ father (dated 1896,1897, and 1903), while referring to lots 12 and 13 (the lots here in question) according to the plat of the Town of Wed-owee, also contain metes and bounds descriptions, referring specifically to the “westerly” boundary as being the public highway that fronts the property. Obviously, this description is at variance with the State’s “right of way” contention, according to the “Pitman Plat,” by approximately 100 feet.

We hold that the trial court did not err in finding that the State failed to meet its burden of proof with respect to the statutory dedication issue. Nor did it err in concluding that the evidence did not warrant a finding of the requisite intent of the Appel-lees, or their predecessor in title, to constitute a common law dedication of the alleged right of way.

AFFIRMED.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.


text:
    Cornelia G. PATE v. The MERCHANTS NATIONAL BANK OF MOBILE.
    80-627.
    Supreme Court of Alabama.
    Jan. 22, 1982.
    Joseph J. Boswell, Mobile, for appellant.

      R. Gregory Watts of Butler & Sullivan, Mobile, for appellee.
   MADDOX, Justice.

Where a cause of action involves the original claim and, also, a counterclaim, can, under the appropriate facts, a trial court enter a partial summary judgment and thereby finally adjudicate the original claim and leave the counterclaim undecided so that the parties involved can further litigate the issues pertaining to that counterclaim? By answering this question in the affirmative, we deem the findings and order of the trial court to be proper and, therefore, affirm its holding.

On July 10, 1978, Gordon R. Pate, Phillip R. Pate, Susan Pate, J. Richard Pate, Brenda Pate and Cornelia Pate executed a personal guaranty agreement with Merchants National Bank of Mobile whereby they jointly and severally guaranteed the payment at maturity of all and various loans and notes executed by Pate Foundation and Pile Driving, Inc., to Merchants National, to the extent that those various notes did not exceed the sum of $20,000.

On or about April 2, 1980, Pate Foundation defaulted on a promissory note in the amount of $13,000 payable to Merchants National, and Merchants National filed suit against Pate Foundation and against the individual guarantors listed previously.

All the defendants filed an answer to Merchants National’s complaint and, thereafter, Merchants National filed its motion for summary judgment.

On March 31, 1981, after Merchants National had filed its motion for summary judgment, the defendants filed an amended answer to Merchants National’s complaint which contained a counterclaim by one of the defendants, Mrs. Cornelia Pate (hereinafter referred to as Mrs. Pate), alleging that Merchants National had wrongfully converted funds belonging to Mrs. Pate which had been deposited in a checking account at Merchants National. The conversion allegedly took place during the year 1979, prior to the execution of the March 3, 1980, note sued on by Merchants National in this action.

On April 3, 1981, the trial judge granted Merchants National’s motion for summary judgment on its complaint and entered judgment against all defendants. The trial judge later amended this judgment of April 3, 1981, by entering a final order pursuant to Rule 54(b), ARCP. In this order the trial judge ordered that the judgment in favor of Merchants National on its motion for summary judgment be made final, but expressly reserved Mrs. Pate’s right to pursue her counterclaim against Merchants National.

It is from this final order of the trial court that Mrs. Pate brings her appeal and presents this issue for our determination:

Did the trial court err in ordering a final judgment against Mrs. Pate and for Mer-. chants National on its guaranty and promissory note claims while leaving her counterclaim against Merchants National still pending? In arguing that the trial court was in error by issuing the order of final judgment, the appellant sets forth the following in her brief:

“In this case Merchants National offered the affidavit testimony of its Assistant Vice-President with the promissory note executed by Pate Foundation attached to the affidavit as Exhibit 1 and the personal guaranty agreement signed by all of the individually named defendants attached as Exhibit 2 to the affidavit and the affiant stated that the sum of $13,000.00 principal plus $1,499.00 interest plus attorney’s fee of 15% as provided for in said promissory note was now due and owing to Merchants National by Pate Foundation under the terms of the promissory note and by all of the named individual guarantors under the terms of the personal guaranty agreement. Pate Foundation offered no evidence to controvert the evidence of Merchants National pertaining to the execution of the promissory note, the default in payment thereof and the amount due thereunder. Therefore the trial court was left with no alternative but to consider Merchants National’s uncontroverted evidence as true and to enter judgment against Pate Foundation as claimed in Merchants National’s First Cause of Action. Further, the trial court properly directed the entry of final judgment against Pate Foundation on the promissory note as authorized by Rule 54(b) ARCP.
“None of the named individual defendants offered any evidence to controvert Merchants National’s evidence in support of its motion for summary judgment against the named individual guarantors. Therefore, the trial court was left with no alternative but to consider Merchants National’s evidence offered in support of its motion for summary judgment against the individual guarantors as true and the trial court properly entered final judgment against all of the named individual guarantors EXCEPT Mrs. Pate and the trial court properly directed the entry of final judgment against all of the individual guarantors as authorized by Rule 54(b) ARCP EXCEPT as to Mrs. Pate. In regard to Merchants National’s claim against Mrs. Pate there was no controversy as to the amount of damages to which Merchants National was entitled to have against Mrs. Pate under the personal guaranty agreement which she admittedly executed. However, as to Mrs. Pate, Merchants National’s motion for summary judgment and the evidence offered in support thereof did not in any way address the claim made by Mrs. Pate against Merchants National in her counterclaim. Therefore as to the controversy between Merchants National in its claim against Mrs. Pate in [the] original complaint and the claim of Mrs. Pate against Merchants National in her counterclaim the trial court could not properly render judgment upon the whole case with respect to those parties.”

Rule 54(b), ARCP, states:

“Judgment upon multiple claims or involving multiple parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. . . ”.

The committee comments following this rule go on to say the following:

“[Subdivision (b)] provides that, in the absence of affirmative action by the judge, no decision is final until the entire case has been adjudicated. The one exception is that where the court has completely disposed of one of a number of claims, or one of multiple parties, and has made an express determination that there is no just reason for delay, the court may direct the entry of judgment on that claim or as to that party. The judgment so entered is a final judgment in all respects, and may be appealed, even though prior to the adoption of these rules it might not have been possible to enter final judgment in such a situation until all the claims, or the rights and liabilities of all the parties, had been adjudicated. Sears Roebuck & Co. v. Mackey, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed. 1297 (1956); Cold Metal Process Co. v. United Engineering & Foundry Co., 351 U.S. 445, 76 S.Ct. 904, 100 L.Ed. 1311 (1956); 3 Barron & Holtzoff, Federal Practice and Procedure, § 1193 (1958); 6 Moore’s Federal Practice, ¶¶ 54.26-54.42 (2d ed. 1971). The validity of the rule seems settled also by such cases as Wood v. City of Birmingham, 247 Ala. 15, 22 So.2d 331 (1945); Wilkinson v. McCall, 247 Ala. 225, 23 So.2d 577 (1945). Subdivision (b) is expressly applicable to a suit involving multiple parties as well as a suit involving multiple claims.”

This rule and its comments clearly provide that under the appropriate facts partial summary judgment on fewer than all the claims involved can be appropriate. See Donald v. City National Bank of Dothan, 295 Ala. 320, 329 So.2d 92 (1976). The fact that the claims may have arisen out of the same set of facts does not prevent them from being multiple claims. Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975).

In a case where the complaint asked that certain land be sold, and the defendants answered and filed a counterclaim seeking an accounting, this Court stated:

“This court is of the opinion that in this case the complaint, asking for sale of the land, and the counterclaim, asking for an accounting, presented ‘more than one claim for relief,’ either of which could have been separately enforced. This is precisely the type of situation Rule 54(b) was intended to cover. The fact that the claims may have arisen out of the same set of facts does not mean they are not multiple claims.”

Cates v. Bush, 293 Ala. 535, 540, 307 So.2d 6 (1975).

The claim and counterclaim in the case at bar clearly presented more than one claim for relief. Merchants National’s claim under the note constituted one claim and Mrs. Pate’s claim for conversion of the funds in her checking account gave rise to another claim. Either of these claims could have been separately enforced. This case too is an example of the type of situation Rule 54(b) was intended to cover.

The trial court, in its final order, made an express determination that there was no just reason for delay and made an express direction for entry of judgment for Merchants National on its complaint, reserving to Mrs. Pate her right to pursue her counterclaim against Merchants National. As was stated earlier, this case presented the very facts that Rule 54(b) was intended to cover, and the trial judge certainly did not abuse his discretion by applying the rule to it. The findings and order of the trial court are due to be affirmed.

AFFIRMED.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.


text:
    H. S. BURGE, Sr. v. JEFFERSON COUNTY, ALABAMA, et al.
    80-665.
    Supreme Court of Alabama.
    Jan. 22, 1982.

      Kenneth R. Watkins, Birmingham, for appellant.
    Edwin A. Strickland, County Atty., Birmingham, for appellee Jefferson County, Alabama.
    Lee Bains and Jon B. Terry, Bessemer, for appellee Judith C. Johnson.

      . Justice Almon, although not sitting at oral argument, has read and studied the briefs and listened to the tape recording of oral argument.

   SHORES, Justice.

This is an appeal by plaintiff Burge from the trial court’s granting of summary judgment in favor of defendants Jefferson County and Judith Johnson. The case involves a drainage system in Jefferson County, Alabama, in an area called the “Y” which is near Hueytown, Alabama, and specifically concerns the property owned by H. S. Burge, consisting of a house and shop on four lots of property, which are located just south of Louis Avenue. The property lies in a natural basin for the drainage area, downhill from Clark Mountain.

The area was developed over a long period of time and, as road surfacing went in, drain pipes were installed in natural drainage channels to continue carrying surface water down Clark Mountain in the same drainage channels in which the water ran prior to the road work. Judith C. Johnson was the owner of property across from Mr. Burge’s property on the corner of Louis Avenue and Viola Avenue, for approximately ten years from 1965 until 1975. Burge, by affidavit, states that in or about 1964 or 1965, Hank Johnson, as agent for Judith Johnson, filled in a drainage ditch which ran north of Louis Avenue parallel to Louis Avenue, running along the property owned by Judith Johnson, and that while said ditch was filled in about that time, the drainage flow did not disturb his property until about 1970. This was about the time that construction was begun on Mt. Vernon Village, a trailer park on Clark Mountain. Burge filed another suit at that time and recovered damages from the defendants for damage to his property. Burge asserts that, thereafter, his property was subjected to periodic flooding following heavy rains.

Burge’s complaint sought a temporary injunction, which was denied. He then amended his complaint to seek damages from a variety of defendants, including Jefferson County and Judith Johnson, the only defendants involved on this appeal. The pertinent parts of the complaint contained a count for negligence against Jefferson County and a count for permanent unabata-ble nuisance against Jefferson County and Judith Johnson.

The court correctly granted Jefferson County’s motion for summary judgment. The plaintiff did not file a claim with the county commission as required by Ala.Code 1975, § 11-12-5, which states:

“No claim against the county shall be passed upon or allowed by the county commission unless it is itemized by the claimant or some person in his behalf having personal knowledge of the facts and all claims passed upon and allowed according to this section must be entered in the order in which they are allowed in a book and kept for that purpose and filed for future references within two weeks after the meeting in which such allowances were made, and the claim must show whether or not any part thereof has been paid.”

Our cases have repeatedly held that filing the statutory claim is a condition precedent to maintaining a suit against the county. Williams v. McMillan, 352 So.2d 1347 (Ala.1977). We hold that the plaintiff’s failure to file a claim with the county commission, as per Ala.Code 1975, § 11-12-5, bars the action against Jefferson County. Appellant’s contention that he substantially complied with § 11-12-5 is without merit since no written claim was ever made.

It is within the power of the legislature to impose notice requirements, provided they are not unreasonable. Section 11— 12-5 merely requires a claimant or some person in his behalf having personal knowledge of the facts to file an itemized claim with the county.

The next question is the propriety of the trial court’s granting summary judgment in favor of Judith Johnson in light of the facts, pleadings, and affidavits in the ease.

Appellant states that the trial court did not explain the basis on which it granted the summary judgment. Appellant assumes that it might have been on the theory of prescriptive easement. He bases his theory on the facts that Judith Johnson argued that point in her brief, and the court did state that “the said action taken by Judith Johnson was more than ten years prior to the time alleged in the complaint when the plaintiff’s damages occurred.” To that point, appellant cites Stouts Mountain Coal and Coke Company v. Ballard, 195 Ala. 283, 70 So. 172 (1915), which held that:

“the mere use by one of another’s land or water by diversion of the water, or a pollution of same or by overflowing the land for the period necessary to bar a recovery, in such a way, a portion of the time, as not to be injurious or destructive to the owner, will not authorize the tacking to that period succeeding years in which the burdens upon the owner were increased or enlarged to the extent of producing injury or destruction, although the method of user by the adverse claimant of the cause producing the result may be the same.”

195 Ala. at 287-288, 70 So. 172.

Burge, in his supplemental affidavit, states that the amount of water was relatively insignificant until 1970, and that it was not until 1972 through 1976 that the amount of water steadily increased to the point of substantial flooding after every heavy rain. Therefore, under Alabama law, the ten-year period had not run when the suit was filed in 1977.

Be that as it may, we hold that the trial court correctly granted summary judgment in favor of Judith Johnson, because the interrogatories, depositions, and pleadings show that, as a matter of law, the alleged nuisance was barred by the one-year statute of limitations, Ala.Code 1975, § 6-2-39.

Burge has consistently maintained that a permanent unabatable nuisance was caused by the acts of Judith Johnson in filling the drainage ditch. When does the statute of limitations begin to run? In Bradley and McWhirter, Inc. v. Conklan, 278 Ala. 395, 178 So.2d 551 (1965), this Court considered this question where the complaint alleged that the construction of a permanent system caused rain and other waters to run onto the plaintiff’s property in excessive quantities — the exact charge as made here. There, the Court held that the case was governed by the one-year statute of limitations, citing Roundtree v. Brantley, 34 Ala. 544 (1859), and Polly v. McCall, 37 Ala. 20 (1860). Judith Johnson has done nothing since 1964 or 1965. Burge contends that by filling the ditch, she created a permanent nuisance. Assuming without deciding that this is so, the statute began to run from the date the ditch was filled and the damage commenced. Goodyear Tire and Rubber Company of Alabama, Inc. v. Gadsden Sand and Gravel Company, Inc., 248 Ala. 273, 27 So.2d 578 (1946).

The only other argument advanced for reversal centers on the trial court’s disallowing an amendment to the complaint offered by the plaintiff after the case had been set for trial and after it had been pending for several years. We have carefully considered this contention and are convinced that the trial court did not abuse its discretion in this regard.

The judgment appealed from is affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, AL-MON and BEATTY, JJ., concur.