author: TORBERT, Chief Justice.

text:
    Robert KERLIN v. TENSAW LAND & TIMBER COMPANY, INC., a corporation.
    No. 78-633.
    Supreme Court of Alabama.
    Sept. 26, 1980.
    Rehearing Denied Nov. 21, 1980.

      Herndon Inge, Jr., of Inge, McMillan & Inge, Mobile, for appellant.
    Sidney H. Schell, of Pillans, Reams, Tap-pan, Wood, Roberts & Vollmer, Mobile, for appellee.
   TORBERT, Chief Justice.

Robert Kerlin appeals from a judgment finding that the plaintiff, Tensaw Land & Timber Company, had acquired title to land situated in Mobile County by adverse possession. We reverse.

The five-acre tract of land in question is described as Lot 8, Block 1, of the Calvert Demonstration Plantation. Robert Kerlin, a resident of Pittsburgh, Pennsylvania, is the record title holder of the land. Kerlin took title by deed from his mother, who had inherited the land from her brother, Charles Stoddard. Stoddard purchased the land from the Demonstration Plantation Company in 1918, and he and his successors in title have paid taxes on the land since 1918.

The Demonstration Plantation Company was created as a promotional endeavor to sell tracts of land. This idea was unsuccessful and the company collapsed in 1925, at which time the ownership of the unsold property reverted to R. M. Boykin. The Kerlin property is surrounded by property which reverted to Boykin. R. M. Boykin conveyed his Demonstration Plantation holding in 1949 to his brother, Charles Boy-kin, who held the property until 1951, when it was conveyed to Tensaw. In 1956 Ten-saw leased its holding to St. Regis Paper Company.

St. Regis planted trees over the entire plantation, including the Kerlin lot, as part of a tree farming operation. Core samples introduced into evidence at trial indicate the trees were planted over twenty years prior to the institution of this action. The trial court, hearing testimony ore tenus, found that the nature of Tensaw’s possession was such as to put a reasonable person on notice of the possession and its adverse nature, and that Tensaw had acquired title by adverse possession.

In Alabama there are basically two types of adverse possession, these two types being statutory adverse possession and adverse possession by prescription. Adverse possession by prescription requires actual, exclusive, open, notorious and hostile possession under a claim of right for a period of twenty years. See, Fitts v. Alexander, 277 Ala. 372, 170 So.2d 808 (1965). Statutory adverse possession requires the same elements, but the statute provides further that if the adverse possessor holds under color of title, has paid taxes for ten years, or derives his title by descent cast or devise from a possessor, he may acquire title in ten years, as opposed to the twenty years required for adverse possession by prescription. Code 1975, § 6-5-200. See, Long v. Ladd, 273 Ala. 410, 142 So.2d 660 (1962).

Boundary disputes are subject to a unique set of requirements that is a hybrid of the elements of adverse possession by prescription and statutory adverse possession. In the past there has been some confusion in this area, but the basic requirements are ascertainable from the applicable case law. In a boundary dispute, the coterminous landowners may alter the boundary line between their tracts of land by agreement plus possession for ten years,' or by adverse possession for ten years. See, Reynolds v. Rutland, 365 So.2d 656 (Ala.1978); Carpenter v. Huffman, 294 Ala. 189, 314 So.2d 65 (1975); Smith v. Brown, 282 Ala. 528, 213 So.2d 374 (1968); Lay v. Phillips, 276 Ala. 273, 161 So.2d 477 (1964); Duke v. Wimberly, 245 Ala. 639, 18 So.2d 554 (1944); Smith v. Bachus, 201 Ala. 534, 78 So. 888 (1918). But see, Davis v. Grant, 173 Ala. 4, 55 So. 210 (1911). See also Code 1975, § 6-5-200(c). The rules governing this type of dispute are, in actuality, a form of statutory adverse possession. See Code 1975, § 6-5-200(c); Berry v. Guyton, 288 Ala. 475, 262 So.2d 593 (1972).

In the case before us today, we are dealing strictly with adverse possession by prescription. While there are certain similarities between the case at hand and a boundary line dispute, this controversy is distinguishable, since Tensaw is claiming Kerlin’s entire lot rather than seeking merely to alter a boundary line. Tensaw does not claim to come within the statutory requirement of color of title, for even though earlier deeds in its chain of title included the property, Tensaw’s deed did not. Because of the foregoing facts, the parties stipulated at trial that this is a case of prescriptive adverse possession.

Tensaw’s physical possession of the disputed tract only extended from 1951, when it acquired the surrounding property from the Boykins, until 1956, when it leased the surrounding property to St. Regis. In order to meet the twenty-year requirement for adverse possession by prescription, either the possession of the Boykins, Ten-saw’s grantors, must be tacked to that of Tensaw, or the acts of St. Regis, Tensaw’s lessee, must inure to the benefit of Tensaw. In order for either of these things to occur, the Boykins’ possession and St. Regis’s possession must also be adverse to Kerlin’s title. See, Murphree v. Swann, 342 So.2d 329 (Ala.1977); Acker v. Green, 224 Ala. 134, 138 So. 820 (1932); Hoyle v. Mann, 144 Ala. 516, 41 So. 835 (1905).

Although efforts to obtain deeds from other claimants to property do not disprove the adverseness of a possession, Foster v. Foster, 267 Ala. 90, 100 So.2d 19 (1958); Bailey v. Bond, 237 Ala. 59, 185 So. 411 (1938), efforts to buy the property from the record owner constitute acknowledgment of his superior title, and thus do disprove the adverseness, since there is then no claim of right. Kittrell v. Scarborough, 287 Ala. 155, 249 So.2d 814 (1971). R. M. Boy-kin, the owner of the surrounding Demonstration Plantation land after the collapse of the venture in 1925, made two offers to buy the property, one in 1945 on his own behalf, and one in 1949 on behalf of his brother, Charles Boykin, to whom he had conveyed the property that same year. As late as 1949, therefore, the possession by the Boykins was not adverse, and while there is no evidence that Charles Boykin subsequently became an adverse possessor, any adverse possession commencing after 1949 would not, coupled with Tensaw’s possession, add up to the requisite twenty years. Therefore, in order for Tensaw to have adversely possessed the disputed property for twenty years, St. Regis’s actions as to the disputed property must inure to the benefit of Tensaw.

Tensaw leased the Demonstration Plantation land surrounding Kerlin’s lot to St. Regis in 1956. The lease was not entered into evidence at trial, nor did Ten-saw offer any testimony as to the contents of the lease. When a party claims title to land by way of adverse possession, the presumption is in favor of the record owner, and a heavy burden of proof rests on the one claiming by adverse possession. Knowles v. Golden Stream Fishing Club, Inc., 331 So.2d 253 (Ala.1976); Murphy v. Leatherwood, 221 Ala. 61, 127 So. 843 (1930); Lucy v. Tennessee & C.R.R., 92 Ala. 246, 8 So. 806 (1890). While the acts of a tenant inure to the benefit of his landlord where the landlord is an adverse possessor, Alabama State Land Co. v. Hogue, 164 Ala. 657, 51 So. 320 (1909); Elliott v. Dycke, 78 Ala. 150 (1884), there is no evidence that Tensaw was St. Regis’s landlord as to the lot owned by Kerlin. In a case of adverse possession by prescription that does not involve a mere boundary dispute, in order for the acts of a tenant to inure to the benefit of his landlord, the landlord must have actually leased the disputed land to the tenant. Although we have in the past been willing to alter the boundary line between coterminous landowners where the tenant has fenced a narrow strip of his neighbor’s property and occupied it for the period of time required by law, Motley v. Crumpton, 265 Ala. 565, 93 So.2d 413 (1957), we have never extinguished a property owner’s entire holding because of acts of a lessee of adjoining property, nor will we now. To do so would be to extend our law of adverse possession beyond the bounds of fairness. Although an adverse possessor may possess through acts of a tenant to land he had actually leased to the tenant, Alabama State Land Co. v. Hogue, 164 Ala. 657, 51 So. 320 (1909); Elliott v. Dycke, 78 Ala. 150 (1884), as well as alter his boundary line by the possession of his tenant, Motley v. Crumpton, 265 Ala. 565, 93 So.2d 413 (1957), the controversy before us falls within neither of these categories, and they will not be extended to cover it.

REVERSED AND REMANDED.

MADDOX, FAULKNER, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

JONES, J., not sitting.


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    Alice STAGG v. Lee VAN SANT.
    79-390.
    Supreme Court of Alabama.
    Oct. 31, 1980.
    Rehearing Denied Dec. 2, 1980.

      Gould H. K. Blair, Birmingham, for appellant.
    James B. Morton of Propst, Topazi & Morton, Birmingham, for appellee.
   SHORES, Justice.

This appeal by Stagg, defendant below, involves the construction of a writing which concerned real estate originally belonging to Van Sant, plaintiff below. Van Sant claims that it is an executory sales contract and that Stagg breached the terms of the contract. Stagg claims that the writing was an unambiguous deed.

The evidence in this case was not transcribed and is not before us. Therefore, we take as true the findings of fact set out in the trial court’s final decree:

1. The original undertakings between Plaintiff and Defendant amounted to a lease by Plaintiff to Defendant of the subject real estate and improvements.
2. After occupancy by the Defendant of the premises for a period of time, as a leaseholder, Plaintiff executed to Defendant a writing which is not in the customary form of a deed.
3. According to the terms of the leasehold agreement and any agreement which the parties may have had between themselves for the sale and purchase of the subject property the Defendant, as consideration for the leasing or purported sale of the premises, was to make payments upon the mortgage which had previously been made and executed by Plaintiff upon the subject property, to be applied as rent or as payment for the leasing or purchasing of the property by Defendant.
4. Subsequent to the execution of the aforementioned document which purported to convey the premises from Plaintiff to Defendant, the Defendant violated the terms of the agreement by failing to make the mortgage payments which were later made by Plaintiff.
5.The Defendant abandoned the premises during and after the period when she was required to make the mortgage payments and Plaintiff, by order of this Court, was placed in legal possession of the premises and continues his possession thereof.
If the course of dealing between the parties be construed as a sale and purchase, Plaintiff is entitled to a vendor’s lien upon the premises. If the course of dealing between the parties resulted in a leasing of the premises, the leasehold interest of Defendant has been voluntarily abandoned and Plaintiff is entitled to possession as owner.
Accordingly, it is CONSIDERED, ORDERED, ADJUDGED and DECREED by the Court as follows:
A lot or parcel of land situated in the S.E. Vi of the S.E. Vi of Section 30, Township 16 South, Range 3 West, more particularly described as follows:
Commence at the Southwest corner of the above said quarter-quarter and run North along the West line for a distance of 148.05' feet to the point of beginning. Thence continue same distance of 132.0' thence run East for a distance of 148.05' feet, thence run South and parallel to the West line for a distance of 132.0' feet, thence run West for a distance of 148.05' feet to the point of beginning.
Also a strip of land 35.0' feet wide lying West of Lot # 1 Block “A” and Lot # 1 in Block “B” East Warner in the S.E. Vi of the S.E. Vi of Section 30, Township 16 South, Range 3 West;
Also Lot # 1 in Block “A” according to present plan and survey of East Warner as shown and designated on the duly recorded plat thereof in Volume 5, Page 10 of Map Books, in the Probate Office of Jefferson County, Alabama
and any right, title or interest claimed by Defendant is hereby divested from her and invested in Plaintiff.

The writing referred to in the trial court’s decree is as follows:

I hereby sell the property in Jefferson County, Alabama to Alice Stagg for the total of $1.00, that includes the house and all. The property in the section that is known on file as the number 157938 through 157940. The house is mortgage [sic] through Mid-State Homes, Inc. account no. 252004.

Stagg brought a motion to vacate the decree and for a new trial. The motion was denied, and Stagg appealed to this Court, contending that the writing was a valid and unambiguous deed and that the court below erred in admitting extrinsic evidence and in misapplying the law as to vendors’ liens.

We do not agree with Stagg’s contentions and, finding no error by the trial court, affirm its judgment.

The court below heard the evidence in this case ore tenus. Its judgment, therefore, is presumed correct and will not be reversed on appeal unless we find it to be plainly and palpably wrong. Templeton v. Hickman, 278 Ala. 75, 175 So.2d 768 (1965). However, we would not have found any error even without the ore tenus presumption.

The court properly allowed the admission of parol evidence to ascertain the intention of the parties,_ as the writing which Stagg relies on was ambiguous. It was prepared by a layman, was not in the form of a deed, and was irregular in its contents. Parol evidence may be received to identify the property which the grantor intended to convey. Eufaula National Bank v. Pruett, 128 Ala. 470, 30 So. 731 (1900). The trial court found, and we agree, that the extrinsic evidence showed that the parties intended the writing to be either a lease or an executory sales contract, but not a deed. By either, Stagg was obligated to make mortgage payments and she failed to satisfy that obligation. Equity will not permit her to renege on her contractual obligations and then seek refuge in the parol evidence rule. Winslett v. Rice, 272 Ala. 25, 128 So.2d 94 (1961).

We find no error in the trial court’s holding that Van Sant is entitled to a vendor’s lien or to possession in the event that the agreement was a lease. The existence of a vendor’s lien does not always rest on a completed sale and the execution and delivery of a deed. Here Van Sant had the “lien which a vendor has before conveyance and which consisted of his retention of title as security for the performance of the contract by the vendee.” Wingard v. Randall, 269 Ala. 420, 113 So.2d 674 (1969). Thus, Van Sant retained title under an executory contract of sale and could enforce payment of the purchase money against Stagg. The lack of an express intent to reserve a vendor’s lien by Van Sant is immaterial, as the lien arises by legal implication. Carver v. Eads, 65 Ala. 190 (1880).

We, therefore, conclude that the circuit court did not err and we affirm its judgment.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Linda W. SIMMONS v. Clarence SIMMONS, Jr.
    Civ. 2110.
    Court of Civil Appeals of Alabama.
    July 2, 1980.
    Rehearing Denied Aug. 6, 1980.

      M. Douglas Ghee of Agee & Ghee, Anni-ston, for appellant.
    George C. Hawkins, Gadsden, for appel-lee.
   WRIGHT, Presiding Judge.

This is a divorce case. The issue is whether by operation of Rule 59.1, ARCP and Rule 4, ARAP, the appeal herein was untimely filed.

The wife filed a complaint for divorce on September 28, 1978. On May 1, 1979, final judgment was entered awarding custody of the parties’ minor children to the wife, ordering child support and alimony payments by the husband and making a division of the parties' property.

On May 30, 1979, the wife filed a post-trial motion seeking a new trial, reconsideration and modification of the judgment, or relief from judgment pursuant to Rule 60(a), (b), ARCP. On August 29, 1979, an agreement, signed by counsel, to extend the time for a ruling on the motion was filed with the trial court.

An order denying the motion was entered on September 24, 1979. The wife filed notice of appeal on November 1, 1979.

Although the wife’s post-trial motion includes a reference to relief from judgment pursuant to Rule 60(a), (b), ARCP, we consider the motion to have been a motion for new trial or to alter, amend, or vacate the judgment under Rule 59. The motion was filed within the 30-day limitation of Rule 59. The relief sought is available under Rule 59, and the grounds stated upon which relief is sought are grounds for a new trial and thereafter an appeal. The motion clearly attacks the judgment of the court and cannot be considered a motion for relief from judgment under Rule 60(a) or (b). Rule 60 cannot be used as a substitute for appeal or to extend the time for filing an appeal. Carnes v. Carnes, 365 So.2d 981 (Ala.Civ.App.1978), cert. denied, 365 So.2d 985 (Ala.1979).

Rule 59.T, ARCP, provides in pertinent part:

No post-trial motion filed pursuant to Rules 50, 52 or 59 shall remain pending for more than 90 days, unless with the express consent of all parties, which consent shall appear of record, .... A failure by the trial court to dispose of any pending post-trial motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.

By operation of this rule the wife’s motion was denied on August 28, 1979, the ninetieth day after filing of the motion. Although the parties filed an agreement with the trial court pursuant to Rule 59.1, consenting to an extension of the ninety-day period, the agreement was not filed until August 29, 1979, the ninety-first day. The motion having been denied on August 28 by operation of the rule, the agreement was of no effect. The parties’ consent to an extension of time under Rule 59.1, ARCP, must be filed prior to the expiration of the ninety-day period. State v. Wall, 348 So.2d 482 (Ala.1977); Coosa Marble Co. v. Whetstone, 294 Ala. 408, 318 So.2d 271 (1975); Personnel Board for Mobile County v. Bronstein, 354 So.2d 8 (Ala.Civ.App.1977).

Rule 4(a)(3), ARAP, provides that where a post-trial motion is deemed denied by the expiration of ninety days as provided in Rule 59.1, the time for appeal begins to run from the date of denial of the motion under Rule 59.1. Coosa Marble Co. v. Whetstone, supra.

Rules 4(a)(1) and (3), ARAP, provides that appeals from final judgments or post-trial motions must be taken within forty-two days of said judgment or order.

The notice of appeal in this case was filed in the trial court on November 1,1979, which was twenty-three days too late. This court has no jurisdiction in this case and we have no alternative but to dismiss the appeal. Olson v. Olson, 367 So.2d 504 (Ala.Civ.App.1979).

APPEAL DISMISSED.

BRADLEY and HOLMES, JJ., concur.


author: ADAMS, Justice.

text:
    Ex parte Linda W. SIMMONS. (Re: Linda W. SIMMONS v. Clarence SIMMONS, Jr.).
    79-874.
    Supreme Court of Alabama.
    Dec. 2, 1980.
   ADAMS, Justice.

WRIT DENIED-NO OPINION.

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


author: BRADLEY, Judge.

text:
    Michael SHEDLOCK and Columbine Shedlock v. Stephanie REVOIR, Lawrence Revoir, Department of Pensions and Security.
    Civ. 2201.
    Court of Civil Appeals of Alabama.
    July 2, 1980.
    Rehearing Denied Aug. 6, 1980.
    M. Douglas Ghee of Agee & Ghee, Anni-ston, for appellants.
    Charles A. Graddick, Atty. Gen., Mary Lee Stapp and Jamie L. Pettigrew, Asst. Attys. Gen., for appellees.
   BRADLEY, Judge.

This is a child custody case.

The children involved are Marcia Allen, age six, and Charles Allen, age four. The parties seeking custody of the children are Stephanie and Lawrence Revoir, mother and stepfather of the children; and the grandparents of the children, Michael and Columbine Shedlock.

This controversy began in the State of Indiana. On November 28, 1978 the Shed-locks filed a petition in the Circuit Court of Hamilton County, Indiana, asking that they be appointed guardians of the minor children. The Indiana court granted the petition and ordered that the Shedlocks be appointed temporary guardians of the minor children. This order was set aside on December 4, 1978 and custody of the children was transferred to the Revoirs. On December 7, 1978 the court ordered an investigation of the homes of the Shedlocks and Revoirs. The court followed this with a number of orders, voided orders, and reorders concerning the home investigations. Several continuances were also granted. During this time, custody of the children remained with the Revoirs.

Finally, on April 3, 1979, the Indiana court, after a hearing, ordered that:

Columbine and Michael Shedlock are hereby appointed .co-guardians over the person and estate of Marcia Allen and Charles Allen until further order of this Court.

Before the Shedlocks received custody of the children, the Revoirs brought the children to Alabama.

On March 19, 1979, prior to the issuance of the guardianship decree by the Indiana court, the Circuit Court of Calhoun County found the children to be dependent, awarded temporary custody to the Department of Pensions and Security, and directed that the children be placed temporarily with the Revoirs. The Revoirs were ordered to submit to periodic visits by agents of the Department to investigate the Revoirs’ home environment.

Still later, on May 18, 1979, the Department filed a motion asking that the prior order placing the children in the home of the Revoirs be rescinded. The trial court granted the motion and gave the Department discretion to remove the children from the Revoirs’ home pending a hearing on the matter. The court also ordered that the Revoirs comply with a visitation and therapy schedule proposed by the Department.

The trial court held a hearing on June 22, 1979 as to custody and placement. At this time the court granted a motion by the Shedlocks to intervene. The court reserved ruling on a motion by the Shedlocks that the order of the Indiana court making them legal guardians of the minor children be given “full faith- and credit.” Custody of the children was also left with the Department pending a review of the matter on November 5, 1979.

After the hearing the trial court denied the Shedlocks’ motion to give full faith and credit to the Indiana court order. The court ordered that temporary custody of the children remain with the Department and that the children be placed in the home of the Revoirs. The court also stated that the best interests of the minor children would be served by keeping custody in the Alabama courts. This appeal followed.

The dispositive issue is whether the trial court erred in not giving full faith and credit to the Indiana decree.

We said in Gray v. Department of Pensions and Security, 53 Ala.App. 19, 296 So.2d 918 (1974):

[WJhere a foreign court has rightfully assumed jurisdiction over minor children, Alabama courts, as a matter of comity, may refuse to deal with the question of their future welfare.
However, it is settled that where a child is physically present within the jurisdiction of an equity court of this state, such court has inherent authority to act to protect the welfare and best interest of such child. [Citations omitted.]

In the instant case, the State of Indiana had assumed jurisdiction over the children but had not entered an order awarding guardianship to the Shedlocks at the time the Alabama court assumed jurisdiction over the children and awarded their temporary custody to the Alabama Department of Pensions and Security. In Ex parte Buck, 291 Ala. 689, 287 So.2d 441 (1973), the Supreme Court of Alabama quoted the following from the Mississippi case of Cox v. Cox, 234 Miss. 885, 108 So.2d 422 (1959):

“It is well-established that the pendency of an action for divorce in another state is not a bar, nor a cause for a stay of proceedings, in a similar action between the same parties in the state, where jurisdiction of defendant is obtained by personal service of process. A stay is not a matter of right, but rests within the sound discretion of the court.” [Citations omitted.]

And then said:

Professor Leflar sums up the “prior pendency” rule: “The mere pendency of an action in one state has no effect upon the right to bring an action in another. Whichever suit is first carried to judgment then bars the other, but it is only the rendition of judgment which has that effect.” Leflar, American Conflicts Law (Student Edition), § 73, p. 169.

However, the petition that was filed in the Alabama court raised the question of the welfare and best interests of the children, i.e. it was alleged that the children had been abused and neglected. But, the supreme court also said in Ex parte Buck that equity courts of Alabama are always open for the protection of minors and any pleading that is filed showing that the welfare of the child requires an order relating to its custody sufficiently invokes the jurisdiction of that court. Certainly under these circumstances the Alabama court acted properly in taking jurisdiction of the children and making arrangements for their care and protection.

We would also point out that a sister state’s decrees in child custody eases are not required to be given full faith and credit where the evidence adduced in the Alabama court shows changed circumstances or an emergency situation. Watkins v. Brannon, 54 Ala.App. 424, 309 So.2d 464 (1974); Ashwood v. Ashwood, Ala.Civ.App., 371 So.2d 924 (1979). We find this rationale equally applicable in a guardianship case where custody of the minor is involved. In the case sub judice the custody of the minors was involved in the Indiana and Alabama proceedings. Custody of the minors was placed in the grandparents in the Indiana proceeding, and legal custody was placed by the Alabama court in the Alabama Department of Pensions and Security with temporary physical possession in the parents subject to supervision by agents of the Department of Pensions and Security.

When the jurisdiction of the Alabama court was invoked on the ground that an emergency existed as to the children’s welfare, the children became wards of the court and the paramount issue for the court’s determination then was what would serve the best interests of the children. Sappington v. Fort, 258 Ala. 528, 63 So.2d 591 (1952). The court determined that the welfare of the children would be best served by their remaining as its wards. Thus, we find no error in the trial court’s refusal to accord the Indiana judgment full faith and credit.

AFFIRMED.

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


author: MADDOX, Justice.

text:
    Ex parte Michael SHEDLOCK and Columbine Shedlock. (Re: Michael SHEDLOCK, et al. v. Stephanie REVOIR, et al.).
    79-873.
    Supreme Court of Alabama.
    Dec. 2, 1980.
   MADDOX, Justice.

WRIT DENIED-NO OPINION.

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


author: HOLMES, Judge. WRIGHT, Presiding Judge,

text:
    Ralph W. BLACKMON v. R. L. ZEIGLER COMPANY, INC.
    Civ. 2212.
    Court of Civil Appeals of Alabama.
    July 23, 1980.
    Rehearing Denied Aug. 20, 1980.

      John W. Kelly, III, of Sikes, Kelly, Edwards & Bryant, Selma, for appellant.
    J. Garrison Thompson of Pitts, Pitts & Thompson, Selma, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The Circuit Court of Dallas County found the employee’s claim for workmen’s compensation benefits was barred by the statute of limitations. The employee appeals. We affirm.

The dispositive issue is whether the one year statute of limitations applicable to workmen’s compensation suits began to run on July 11, 1975, therefore barring the employee’s suit which was filed on August 30, 1976.

The record reveals the following:

On June 5, 1975, the employee was employed as a meat grinder for appellee, R.L. Zeigler Company, Inc. While performing his duties on that date, he injured his back in attempting to shovel meat into a hopper or grinder.

As a result of this injury, the employee went to a doctor and missed several days work in June. After his return to work he continued to complain of pain in his back. Finally, in late October or early November of 1975, he allegedly reinjured or aggravated his back condition. After this incident, he missed several weeks of work in November and December.

There was medical testimony to the effect that the employee suffered from spon-dylolisthesis which results from repeated heavy forced extension of the back. This testimony indicated that once this condition exists, an unguarded twist or accident can cause the disease to become symptomatic. On March 2, 1977, the employee underwent a spinal fusion operation.

It is uncontroverted that on July 11,1975, the employee received workmen’s compensation benefits for the June absence from work. Zeigler’s insurance carrier issued a check to the employee who in turn endorsed the check over to Zeigler.

This procedure was apparently followed pursuant to Zeigler’s “sick pay” policy. Under this policy, an employee would receive a specified percentage of his salary if absent from work due to sickness or injury. If the absence was due to an on-the-job injury, Zeigler’s insurance clerk would prepare a report and forward it to the compensation carrier. The carrier would then issue a check to the employee who would in turn endorse it over to Zeigler provided the check was for less than the amount he had received as sick pay.

Although the record is not abundantly clear, the employee missed work in October of 1975 due to the recurrence of an off-the-job injury. He received sick pay for this, but not compensation. The insurance clerk testified she informed the employee this was not a compensable injury.

As indicated, the employee again missed time in November and December of 1975 due to the recurrence or aggravation of the back injury. Once again, he received sick pay but no checks from the compensation carrier were forthcoming. Apparently, the insurance clerk did not prepare a report to be sent to the carrier for this time period because she believed the employee’s absence was caused by the off-the-job injury.

Several employees of Zeigler, including the insurance clerk and the office manager, testified that Zeigler’s sick pay policy had been fully explained to the employee and stated all employees had a written copy thereof. Furthermore, the insurance clerk stated the employee came to see her several times a week during the period he was absent from work to discuss the nature of the payments. Both denied the employee’s allegations that they had told him he was receiving compensation and not sick pay.

There was further testimony that after the June 5, 1975, injury, the employee sought light duty work as a security guard. This was denied because he was “too young and irresponsible.” However, apparently after the November recurrence of the injury, he was transferred to another job with the same work classification and the same rate of pay. The employee testified the work load on the new job did not differ from that of a meat grinder with the exception that he was no longer required to do heavy lifting.

On appeal, the employee through able counsel advances several theories which, if accepted, would enable him to escape the bar of the one year statute of limitations. He first argues the measuring date of the accident should be November of 1975, when he allegedly became disabled, and not June 5, 1975, the date his back problems first became symptomatic.

He further notes that when compensation payments have been made, the limitations bar does not take effect until one year has expired since the making of the last payment. See, § 25-5-80, Code of Ala.1975. He therefore argues that the November and December sick pay should be deemed compensation for purposes of postponing the running of the statute. Alternatively, he contends that he received compensation when he was transferred to what he would characterize as a “light duty” job.

Finally, he argues that he was told the sick pay he received in November was compensation. He concludes he was the victim of legal fraud and that such fraud should toll the running of the statute.

At the outset, we note that this court reviews workmen’s compensation cases by writ of certiorari. Therefore, we do not look to the weight of the evidence as to any fact found by the trial court, but simply look to see if there is any evidence to support those findings. Mobile Pain Mfg. Co. v. Crowley, 56 Ala.App. 673, 325 So.2d 182 (1975). That is to say, where there is conflicting testimony in a workmen’s compensation proceeding, and there is evidence to support the trial court’s findings, those findings are conclusive. Young v. City of Huntsville, Ala.Civ.App., 342 So.2d 918 (1976), cert. denied, Ala., 342 So.2d 924 (1977).

Turning to the employee’s first argument, we conclude the trial court correctly decided that June 5, 1975 was the date of the employee’s accident.

This conclusion is compelled by § 25-5-1(8), Code of Ala. 1975, which defines accident as an “unexpected or unforeseen event, happening suddenly and violently, with or without human fault, and producing at the time injury to the physical structure of the body . ...” Clearly, this definition contemplates a reasonably definite period of time during which the injury manifests itself. See, United Telephone & Telegraph Co. v. Culliver, 271 Ala. 568, 126 So.2d 119 (1961).

In Davis v. Standard Oil Co. of Kentucky, 261 Ala. 410, 74 So.2d 625 (1954), the Supreme Court of Alabama reached a like conclusion, holding that under this definition, “accident” is not synonymous with “disability.” There, the court said:

It appears that the courts have uniformly held that the time for filing a suit begins to run from the time of the happening or occurrence which later produced disability and not from the time a compensable injury or disability becomes apparent, where the act provides that the period of limitation runs from the date of the accident, as distinguished from the time of disability or other date.

261 Ala. at 415, 74 So.2d at 629-630.

On appeal, the employee argues for the first time that the disease which has occasioned his difficulties is an occupational disease. As this court will not entertain arguments not advanced at the trial level, we see no need to delineate the employee’s contentions on this point. See, Hellums v. Hager, Ala.Civ.App., 360 So.2d 721, writ denied, Ala., 360 So.2d 724 (1978).

In any event, it would appear that the employee’s back disease is not an occupational disease, even if caused by lifting, because there was no showing it was either due to hazards in excess of those ordinarily incident to employment or peculiar to the occupation of meat grinder. See, Young v. City of Huntsville, Ala.Civ.App., 342 So.2d 918 (1976), cert. denied, Ala., 342 So.2d 924 (1977).

Therefore, the date of the injury for purposes of § 25-5-80 is June 5, 1975, and the employee’s suit, filed in August of 1976, is barred unless the employee received compensation payments in the year immediately preceding the filing.

As indicated, it is uncontroverted the employee received a compensation payment on July 11, 1975. At issue is the proper characterization of both the sick pay received in November of 1975 and the wages paid for the alleged light duty job assigned to the employee upon his return to work.

Turning first to the light duty job, we note it has been held that when an injured employee receives the same wages for lighter work upon returning to his job, such payment can be compensation under appropriate circumstances. Head v. Triangle Construction Co., 274 Ala. 519, 150 So.2d 389 (1963).

In Head, our supreme court said the correct rule involves the following issues: (1) whether the employer was aware, or should have been aware, that the payments were compensation, (2) whether the payments had the effect of a recognition of the employee’s claim, and (3) whether the employer paid for more than he received. See also, B.F. Goodrich Co. v. Parker, 282 Ala. 151, 209 So.2d 647 (1967).

Here, Zeigler paid the employee the standard wage for a job with the same classification as the one he had previously held. There was no evidence showing the employer could have gotten the job done for less. Furthermore, there was evidence the employee was denied an acknowledged light duty job as a security guard. The employee admitted the new job was no easier than that of a meat grinder, stating the only difference was in the amount of lifting. Clearly, there was evidence to support the trial court’s finding the wages paid the employee did not amount to compensation. See, Head, supra.

Next, we address the contention that the sick pay was the equivalent of compensation.

In Belser v. American Cast Iron Pipe Co., Inc., Ala.Civ.App., 356 So.2d 659 (1978), this court, through Judge Bradley, held that although sick pay is generally not recognized as compensation, it may be so classified if certain conditions are met. In so ruling, we adopted the above referenced test laid down in Head, supra.

Applying these factors to the case at bar, we find there is ample evidence to support the conclusion Zeigler was not aware the sick pay was the equivalent of compensation. The company’s insurance clerk specifically testified she believed the employee was missing work due to a non-compensable knee injury. It only follows that in making the payments Zeigler was not recognizing the employee’s compensation claim. Indeed, no report was prepared or sent to the compensation carrier regarding the November recurrence of the back injury as would have been required under company policy. Likewise, Zeigler did not pay for more than it received. True, the employee was receiving money while missing work, but these payments were made under an established company policy which provided sick pay regardless of the nature of the injury. See, Belser, supra.

Finally, there was also evidence to support the trial court’s finding that no legal fraud was practiced upon the employee. While it was held in Dorsey v. United States Pipe & Foundry Co., Ala., 353 So.2d 800 (1977), that fraud can toll the running of the statute of limitations, the court also said there must first be found acts by the employer which lead the employee to believe liability is admitted and will not be contested, or acts of the employer which either falsely misrepresent to the employee or falsely conceal from him the truth of the facts which liability depends.

Here, the employee testified he was told he would be compensated for the November recurrence of the injury. Likewise, he stated he was told the sick pay was compensation. However, the insurance clerk and office manager of Zeigler denied making such statements. What is more, the clerk stated that on several occasions she explained to the employee that he was receiving such pay and not compensation. The office manager testified he had explained the sick pay policy fully to the employee. Both denied making any misrepresentation to the employee at any time. We are therefore not prepared to say there was no evidence to support the trial court’s finding.

We would further note the employee had actual knowledge of the company’s procedures due to his June injury and another injury otherwise not relevant to this suit. After both incidents, he received compensation checks which he in turn endorsed over to Zeigler.

Although it is the policy of this court not to comment upon remarks made in dissent, in this instance the majority feels compelled to make several observations.

First, the employee, both at trial and on appeal, has argued he was the victim of fraud. That is to say, he has not relied upon a theory of estoppel. As this court said in Belser v. American Cast Iron Pipe Co., Inc., Ala.Civ.App., 356 So.2d 659, 663 (1978), where the employee also alleged fraud: “. . . [W]e are limited in our review to the theory on which the case was tried. The theory litigated in this instance was fraud and we cannot enlarge that theory on appeal to include estoppel.”

In any event, we fail to see why the employer is estopped from asserting the statute of limitations because of its “acts and representation to claimant from June 5, 1975 through its letter of December 3, 1975.”

As we have pointed out, there was legal evidence to support the trial court’s finding that the employee had been informed he was receiving sick pay, not compensation. Furthermore, he had actual knowledge of the company’s policies and thus should have been aware something was amiss when he failed to receive compensation checks after his November absence from work.

We also fail to see how the December 3,1975, letter to the compensation carrier could in any way serve as the basis of an estoppel. Nowhere does the dissent show how the letter misled the employee or caused him to detrimentally change his position. See, B.F. Goodrich Co. v. Parker, 282 Ala. 151, 209 So.2d 647 (1967). Indeed, there is no indication the employee even knew of the existence of this letter.

Neither does the majority find persuasive the dissent’s conclusion that the employer, at least through December 3, 1975, did not know whether the November absence was compensable. The tests laid out in Head, supra, and Belser, supra, and even in Dorsey, supra, all look to some knowledge by the employer evidencing an acknowledgment of the employee’s claim. Here, the dissent would have ignorance serve the same function and toll the running of the statute.

Finally, the dissent seems to rely on the medical payments made by the employer as forming a possible basis for estoppel. In answer, we would simply note our legislature has made it clear that medical payments, unlike compensation payments, do not toll the statute of limitations. See, § 25-5-1(1), Code of Ala. 1975; Sam’s Place v. Middleton, 39 Ala.App. 481, 103 So.2d 812 (1958).

Suffice it to say the majority fails to see the necessity of judicially countermanding this legislative directive. If medical payments are not compensation, the employer should feel free to make them without fear of losing the benefit of the statute of limitations. If the dissent’s logic were to be accepted, the result could well be the refusal of employers to make medical payments for deserving, although noncompensable,' injuries.

Based upon the above, this case is due to be affirmed.

AFFIRMED. MOTION TO DISMISS APPEAL OVERRULED.

BRADLEY, J., concurs.

WRIGHT, P. J., dissents.

WRIGHT, Presiding Judge,

dissenting.

I must respectfully dissent from the result of the opinion of the majority and from some of the statements contained in the opinion.

I recognize the efficacy of the citation of United Telephone & Telegraph Co. v. Culliver as authority for the necessity of a claimant establishing the occurrence of the statutory “accident.” I acknowledge there must be some “injurious event;” however, it seems to me that to breathe new life into Gulliver is to diminish the authority of B.F. Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So.2d 37 (1971), cert. denied 287 Ala. 726, 253 So.2d 45 (1971); Pow v. Southern Construction Co., 235 Ala. 580, 180 So. 288 (1938); Gulf States Steel Co. v. Christison, 228 Ala. 622, 154 So. 565 (1934). Those cases stand for the proposition that the statutory requirement of an “accident” may be satisfied by a result as well as a “cause” and if the job caused the injury, it was by “accident” within the intent of the Workmen’s Compensation Act. Albertville Nursing Home v. Upton, 383 So.2d 544 (Ala.Civ.App.1980); Newman Bros. Inc. v. McDowell, 354 So.2d 1138 (Ala.Civ.App.1977), cert. denied, 354 So.2d 1142 (Ala.1978); City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729 (1975).

I dissent from the affirmation of the judgment of the trial court upon authority of the case of Dorsey v. United States Pipe & Foundry Co., 353 So.2d 800 (Ala.1977). That ease was considered by certiorari upon the invitation of this court. 353 So.2d 797 (Ala.Civ.App.1977). The issue presented was whether the statute of limitation in a workmen’s compensation claim could be tolled by legal fraud or estoppel. The Supreme Court in a statement of first impression of the law in this state said: “We hold, therefore, that when acts are done by the employer which lead the employee to believe that liability under the statute is admitted and will not be contested . . . the running of the statute of limitations may be tolled and it is immaterial whether the employee relies upon actual fraud or mere estoppel....” The court further said: “In conclusion, we take note as did the United States Supreme Court in Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959), of the age-old maxim that, ‘no man may take advantage of his own wrong.’ See also Mazer v. Jackson Insurance Agency, 340 So.2d 770 (Ala.1976).” 353 So.2d at 803.

In this case it is without conflict that it was the policy of the employer to file with its insurance carrier the report of an injury to an employee on the job. It was unnecessary for the employee to file a claim. He had only to inform the employer that he had been injured. It is further without conflict that claimant in this case informed his employer that he suffered an injury to his back on June 5, 1975. Acting upon that information, employer’s clerk filed notice with the insurer and advised claimant to see a doctor. He saw a chiropractor and continued to see him for some time thereafter. He took off from work for several days. He was paid fifty-five percent of his wages by a company check according to a company policy on sick pay. Such sick pay was paid when an employee reported off from work with a physician’s statement of cause. He received the same check whether he was injured on the job or just sick for some unrelated reason.

The company clerk stated that the insurance carrier, after receiving her report, decided whether workmen’s compensation was due the employee.

The employee never knew whether he was to receive compensation until or unless he was called upon to come by the company’s office and endorse a check issued by the insurer and sent to the company. If the compensation check was greater than the amount he had been paid by the company he got the excess, otherwise he merely endorsed it over to the company.

Claimant in this case received one check from the insurer for the days he was off from work in June. He endorsed it over to the company in July, because he had already received the company’s check for the days off and had returned to work on the same job where he was injured, though still receiving treatment from the chiropractor.

In November of 1975 his back again became painful, as before. He complained again to his superior and also told him he had pain from an old knee injury not job related. His employer made an appointment for him to be seen by an orthopedist at company expense. On December 3,1975, a letter was sent by the company to the agent of the insurer referring to the back injury of June 5 reminding the agent of a telephone conversation with him concerning claimant on the same day of the letter. The letter stated that claimant was still having trouble with the back injury and that an appointment had been made with the orthopedic surgeon, Dr. Sudduth, to examine his back as well as his knee. Insurer was informed that the doctors and hospital had been notified to send all charges for treatment of the back injury to the insurer. The letter stated that claimant returned to work the date of the letter, December 3, 1975, after being continuously absent since November 7, 1975. The orthopedist stated the back pain occurring in November came from the condition which became symptomatic through lifting on June 5.

The orthopedist thereafter referred claimant to a surgeon in Birmingham, who subsequently performed a fusion of vertebrae. The insured received the medical reports from the orthopedist and paid them. Claimant received checks from defendant during the time he was off from work.

It would hold that the employer is es-topped from claiming benefit of the statute of limitation because of its acts and representation to claimant from June 5, 1975 through its letter of December 3, 1975.

We have previously shown that defendant had established a policy and assumed responsibility of filing notice of claim for compensation with the insurer on behalf of its employees. It did so in this instance. The evidence clearly shows that as of the letter of December 3,1975, defendant knew of the continuing difficulty from the injury on June 5,1975. This was not a new injury. It is certainly not unusual for effects of an accident to ease after initial treatment and get worse again after a period of work. This does not require a second “accident” as argued by defendant to the court below.

The defendant continued its assumed responsibility of notification to the insurer of the onset of new pain from the old injury. It provided continued medical treatment for that injury, sending claimant to a specialist for examination for treatment. There was no notice to claimant other than that his injury was continuing to be recognized as compensable for medical treatment. The defendant paid him a company check in the same or greater amount than that provided by the Workmen’s Compensation Act. Defendant stated that neither it nor the employee knew whether compensation was to be paid until the insurer’s check was received. There was never any notice to claimant that his injury was not compensa-ble-all appearances were to the contrary, even to the employer, at least through December 3, 1975.

I submit by its acts and assumed duties, relied upon by claimant, defendant is es-topped as a matter of law from claiming benefit of the statute of limitation in this case.


author: EMBRY, Justice.

text:
    Ex parte Ralph W. BLACKMON. (Re: Ralph W. BLACKMON v. R. L. ZEIGLER COMPANY, INC., a Corp.)
    79-908.
    The Supreme Court of Alabama.
    Dec. 5, 1980.
    John W. Kelly, III, of Sikes, Kelly, Edwards & Bryant, Selma, for petitioner.
    J. Garrison Thompson of Pitts, Pitts & Thompson, Selma, for respondent.
   EMBRY, Justice.

In denying the petition and refusing to issue the writ of certiorari in this case we are not to be understood as approving anything other than the result reached by the majority of the Court of Civil Appeals, 390 So.2d 628.

We do not view, as apparently does Judge Wright in dissent, the opinion as diminishing the precédential authority of those cases he cites as being affected thusly. It appears the decision stands on the particular facts of the case and was reviewed within the narrow scope of the rule applicable to review of workmen’s compensation cases.

WRIT DENIED.

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


text:
    Curtis G. RAYFORD v. Joy R. RAYFORD.
    Civ. 2226.
    Court of Civil Appeals of Alabama.
    Aug. 6, 1980.
    Rehearing Denied Sept. 10, 1980.

      George M. Higginbotham, Bessemer, for appellant.
    J. H. McEniry, III, Bessemer, for appel-lee.
   WRIGHT, Presiding Judge.

This is a divorce case: The husband appeals. We affirm.

The parties were married for about five years. One child was born of the marriage and the husband adopted a child of the wife by a previous marriage.

The wife is thirty-one years of age. She is a college graduate and is employed as an instructor at a state technical school. She earns about $15,000 annually.

The husband is blind in one eye and has undergone four operations on his back in recent years. He was determined to be totally disabled for Social Security purposes in 1978. He is of limited employment skills and has earned no substantial income for more than three years. His parents have made substantial contributions to the family during that time. Social Security in the amount of $374 per month is being received by the husband. He has lived with his parents since separation from his wife. The children receive $100 each per month from the father’s Social Security.

The parties owned a home with a substantial mortgage, an automobile with mortgage and household furniture. The parents of the husband had provided $2,100 of the down payment for the home. There are substantial debts. The husband was an insured under the wife’s Blue Cross Group Insurance plan. A divorce would remove him from benefits. However, he had the right to convert to other but lesser coverage under individual coverage but at his own expense.

After oral hearing the court granted a divorce, gave custody of the children to the mother, gave her the home and automobile but required her to make both mortgage payments and to pay other indebtedness including repaying the husband’s parents $2,100. No alimony or attorney’s fee was granted to the husband as he requested, though further consideration of alimony was specifically reserved to the court. The costs were assessed one-half to each party.

I

Husband first contends error in the granting of the wife’s petition for divorce rather than his request for separate maintenance. It is the argument of the husband that a divorce removed his right to the greater insurance benefits of the wife’s group plan at a time when he may need further surgery and medical assistance.

We have answered husband’s contention previously in Haynes v. Haynes, 360 So.2d 1016 (Ala.Civ.App.1978) and Hilfer v. Hilfer, 53 Ala.App. 549, 302 So.2d 237 (1974). The ground of incompatibility was established by the evidence in this case. The court did not err in granting a divorce.

II

Husband next avers error in refusal of the court to permit additional testimony to be taken at the hearing upon the motion for new trial. We find no error in the court’s action. Rule 59(a) ARCP provides the court may open the judgment, take additional testimony and enter a new judgment. Such action is clearly discretionary. The effort in this case was to introduce supportive evidence of matter previously heard in the original trial. Such evidence was not newly discovered and was merely corroborative. We perceive no error. Wright & Miller, Federal Practice and Procedure, Civ. § 2804.

III

Husband contends error for permitting testimony by the wife of her character and reputation for truth and veracity. We find no material prejudice in the court’s action in any event. Though her reputation may not have been specifically in issue when her request for custody of the children was not contested, the court could consider her character and reputation in reaching the primary determination of her fitness for custody. As parens patriae of any child whose custody is before it, the court cannot be placed in error by hearing any evidence touching fitness of a prospective custodian.

In any event, the court at the conclusion asked if counsel wished that testimony excluded from the record, counsel made no such request but stated “leave it as it is.” In such circumstances, he may not now charge error. We also apply Rule 45, ARAP.

IV

We find no error in awarding of the home, subject to payment of the mortgage, to the wife as a home for her and her children. Such award was within the discretionary power of the trial court. Eubanks v. Eubanks, 52 Ala.App. 224, 291 So.2d 159 (1974).

V

The husband next contends abuse of discretion in the failure to award to him alimony and attorney fees. Though the right to receive a grant of alimony has now been by statute extended equally to needy husbands as well as needy wives, § 30-2-51, Code of Alabama (1975), such an award remains a matter within the reasonable judicial discretion of the trial court, depending upon the facts of the case. Plaskett v. Plaskett, 348 So.2d 784 (Ala.Civ.App.1977), cert. denied, 348 So.2d 789 (Ala.1977).

Our consideration of the evidence heard by the trial court does not convince us that a failure to award the husband alimony at this time is clearly and evidently wrong. It is true as argued that the income of the wife is over $15,000 annually and is augmented by monthly Social Security benefits for the two children in the amount of $100 each, while the total income of the husband is $374 per month. The evidence was not in conflict that the expenses of the wife are in excess of her net income. Such expenses include house and car payments of more than $300 per month, and monthly payments in debts, utilities, insurance, day care for the children, medical and drug bills, auto expenses, groceries, etc. It is equally true that the husband has debts, medical and drug expenses etc. However, he lives with his parents who have aided him in the past.

It may be that the husband will need assistance if further surgery is necessary or other misfortune occurs. It then may be that the wife will have better means with which to assist. It may be assumed that is the reason why the learned and compassionate trial judge held such further consideration open by his judgment. Under such circumstances we do not take the liberty of supplanting his judgment. We find no abuse of discretion. The judgment is in all things affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Ex parte Curtis G. RAYFORD. (Re: Curtis G. RAYFORD v. Joy R. RAYFORD).
    79-958.
    Supreme Court of Alabama.
    Dec. 2, 1980.
   MADDOX, Justice.

WRIT DENIED-NO OPINION.

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


text:
    Elizabeth Relfe SEAL v. Kenneth Arthur SEAL.
    Civ. 2134.
    Court of Civil Appeals of Alabama.
    Sept. 17, 1980.
    Rehearing Denied Nov. 5, 1980.
    J. Massey Relfe, Jr., of Relfe, Ramsey & Evans, Birmingham, for appellant.
    Robert F. Clark, Mobile, for appellee.
   BRADLEY, Judge.

This is a divorce case.

The wife, Elizabeth Relfe Seal, is a resident of Mobile County, Alabama. The husband, Kenneth Arthur Seal, is a resident of Falls Church, Virginia.

A complaint for divorce was filed by the husband in Mobile County, Alabama. The matter was set for hearing on January 25, 1979. At this time a settlement was reached between the parties and the agreement was presented to the court. The attorney for the wife was directed to prepare the divorce decree and submit it to the court within twenty days. The husband was to be given the opportunity to review the decree before it was submitted to the court. The case was ordered to be placed on the March trial disposition docket of the Mobile County Circuit Court.

Four days later on January 29, 1979 the husband filed a “Motion to Set Aside the Agreement and to Set Cause for Trial on Merits.” On February 2, 1979 the wife filed an answer to the motion to set aside the agreement. She asked that the motion be denied on the ground that it failed to allege facts showing mistake, inadvertence, surprise, or excusable neglect pursuant to Rule 60(b) of the Alabama Rules of Civil Procedure or any other reason justifying relief from judgment under Rule 60(b)(6) of the Alabama Rules of Civil Procedure.

A hearing on the motions was held on February 14, 1979. On March 9, 1979 the court set aside the agreement entered into by the parties on January 25, 1979 and set the case for trial on the merits. Trial was held on September 19, 1979 and a final decree of divorce was entered on October 22, 1979. The appeal is from this decree.

The wife’s sole contention on appeal is that the trial court committed reversible error in granting husband’s “Motion to Set Aside the Agreement and to Set Cause for Trial on Merits.” In support of her contention, she argues that the trial court should have denied the husband’s motion on the basis of Rule 60(b)(6) or other appropriate ground.

The husband says that the trial court is not bound by agreements made by the parties before final judgment is entered. Also, he argues that Rule 60(b)(6) of the Alabama Rules of Civil Procedure is not applicable to the “Motion to Set Aside the Agreement and Set Cause for Trial on Merits” because no final judgment was ever entered adopting and confirming the agreement. The husband says that he could simply ask the court for permission to withdraw the agreement, and the court without committing error could permit the withdrawal. We agree.

The law in Alabama dealing with agreements made between litigants prior to trial is clear. In the case of Williams v. Williams, 261 Ala. 328, 74 So.2d 582 (1954), our supreme court said:

The trial court, in making its decree, is not controlled by the agreement of the parties. He may adopt or reject such parts of it as seem proper from the situation of the parties as shown by the evidence on the trial.

Russell v. Russell, 247 Ala. 284, 24 So.2d 124 (1945); Baumler v. Baumler, Ala.Civ.App., 368 So.2d 864 (1979); Kohn v. Kohn, 52 Ala.App. 636, 296 So.2d 725 (1974).

In the case at bar the trial court was not bound to accept the agreement between the parties. Granting the motion to set aside the agreement and set the cause for trial on the merits was a proper exercise of judicial discretion considering the testimony given by the husband that he was under duress at the time of making the agreement and that the agreement was made involuntarily.

As contended by the husband, Rule 60(b)(6) of the Alabama Rules of Civil Procedure has no application to the “Motion to Set Aside the Agreement and Set Cause for Trial on Merits.” Rule 60(b)(6) provides:

[T]he court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: ... (6) any other reason justifying relief from the operation of the judgment.

Rule 60(b)(6) contemplates a final judgment having been made. At the time the agreement was presented to the trial court on January 25, 1979 no final judgment had been entered. The wife had twenty days to prepare a decree and submit it to the court. Furthermore, the trial court placed the case on its March trial docket on the same day it was made aware of the agreement, i. e. January 25, 1979. Therefore Rule 60(b)(6) is inapplicable.

By allowing the husband to withdraw his agreement because it had been entered into involuntarily and under duress, the trial court properly exercised its discretion.

AFFIRMED.

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


author: HOLMES, Judge.

text:
    FIRST ALABAMA BANK OF MONTGOMERY, N. A. v. Jim D. PARSONS and James L. Whitehead.
    Civ. 2207.
    Court of Civil Appeals of Alabama.
    Nov. 5, 1980.

      James A. Byram, Jr. and G. Griffin Sikes, Jr. of Steiner, Crum & Baker, Montgomery, for appellant.
    Jere L. Beasley and Frank M. Wilson, Montgomery, for appellees Jim D. Parsons and B & E Steel Services, Inc.
    Randall C. Morgan, Montgomery, for ap-pellee James L. Whitehead.
   HOLMES, Judge.

The plaintiff, First Alabama Bank of Montgomery, N.A., sued the defendants for the balance due on certain promissory notes. The bank was, in fact, seeking a deficiency judgment after sale of certain equipment which was security for one of the notes. Defendants counterclaimed, alleging commercially unreasonable behavior by the bank.

The trial court granted defendants’ motions for a directed verdict on ground that the bank’s failure to comply with § 7-9-504(3), Code of Ala.1975 (notice to debtor of disposition of collateral after repossession), bars the bank’s recovery of a deficiency judgment. The lawsuit went to the jury on defendants’ counterclaim. The jury returned a verdict against the bank for $6,000. The bank appeals and we reverse and remand.

The primary issue on appeal is whether the bank’s failure to comply with § 7-9-504(3) bars as a matter of law a creditor from recovering a deficiency judgment.

The pertinent facts as revealed by the record are as follows: The defendants in this case are B&E Steel Services, Inc., and Mr. Parsons and Mr. Whitehead, officers of the corporation. Parsons and Whitehead executed unconditional continuing guaranties of the corporation’s debts. Thereafter, B&E obtained two loans from plaintiff bank, both of which were evidenced by notes. One note was secured by two pieces of equipment. The other note was unsecured.

B&E defaulted on both notes. The bank, pursuant to the loan agreement, applied the balance of B&E’s checking account to the debt owed on the unsecured loan. This action substantially reduced the amount due.

The bank then repossessed the collateral. Parsons and B&E were notified that the equipment would be sold to the highest bidder at the bank’s main office on February 19, 1979, if it were not redeemed by that date. Whitehead was given no notice of this proposed sale.

Although the bank received some bids on February 19, it did not accept any of them. Instead, it entered the collateral in a heavy equipment auction held on March 17, 1979. The bank did not notify any of the defendants of this sale.

Parsons and Whitehead were notified on April 16,1979, that the equipment had been sold at auction and that the proceeds had been applied to the debt remaining on the secured note. The notice stated the amounts due on each note and demanded that Parsons and Whitehead fulfill their obligations as guarantors by paying both notes in full. No payment was forthcoming and the bank filed the instant suit.

Before deciding the primary issues it is necessary to determine if a guarantor is a debtor within the meaning of § 7-9-504(3). If a guarantor is not a debtor within the meaning of that section, as the bank urges, then the trial court erred in ruling the bank’s deficiency judgment action was barred by its failure to comply with § 7-9— 504(3). Put another way, the bank contends that guarantors, such as Whitehead and Parsons, are not entitled to notice under § 7-9-504(3).

“Debtor” as used in Article 9 of the Uniform Commercial Code is defined in § 7-9-105(l)(d), which says that a debtor is “the person who owes payment or other performance of the obligation secured, . .. . ” Whether this definition includes a guarantor is a question of first impression in Alabama.

One who unconditionally guarantees another’s debt obviously “owes payment or other performance of the obligation secured.” T & W Ice Cream, Inc. v. Carriage Barn, Inc., 107 N.J.Super. 328, 258 A.2d 162 (1969). Although there is authority to the contrary, we feel this is the better view.

A well reasoned and scholarly discussion of the issue may be found in Chase Manhattan Bank, N.A. v. Natarelli, 93 Misc.2d 78, 401 N.Y.S.2d 404 (1977). In that opinion the court pointed out that the purpose of UCC § 9-504(3) is to notify all persons having an interest in the collateral so that they may protect their interests. Notice of sale allows those persons to safeguard any right of redemption, to bid at the sale, to procure other bidders, or otherwise insure that a fair price is received for the collateral. Because a guarantor is liable for any deficiency after sale, he has at least as much at stake in a sale after default as the debtor does.

With the above in mind, we find that a guarantor is a “debtor” within the meaning of § 7-9-105(l)(d) and is therefore entitled to notice under § 7-9-504(3). Consequently, the trial judge was correct in ruling that Parsons and Whitehead were entitled to notice.

The next question is whether the bank failed to comply with § 7-9-504(3). The bank concedes that it gave no notice to Whitehead, but contends that Parsons and B&E were properly notified.

As shown above, Parsons and B&E did receive notice of the proposed February sale. They were not notified of the subsequent auction in March. The trial judge ruled that the bank’s notice of the February sale was insufficient as a matter of law to notify Parsons and B&E of the March sale.

While there is no Alabama authority on point, a Connecticut court, in Savings Bank of New Britain v. Booze, 34 Conn.Sup. 632, 382 A.2d 226 (1977), was faced with a similar set of facts. That court held that notice of one sale at one location was not sufficient notice of a second sale at a different location. Based on the foregoing authority, we uphold the trial court’s ruling in this case that the bank’s notice to Parsons and B&E was insufficient as a matter of law.

As indicated above, the primary issue in this case is whether the bank’s failure to comply with § 7-9-504(3) bars the bank’s action for a deficiency judgment.

In the present case, Whitehead through able counsel contends that the bank’s total failure to give him notice of sale amounted to commercially unreasonable behavior. Parsons and B&E contend that the bank acted in a commercially unreasonable manner because they received insufficient notice.

In Valley Mining Corp., Inc. v. Metro, Ala., 383 So.2d 158 (1980), the Alabama Supreme Court indicated that insufficient notice of a default sale is commercially unreasonable behavior. Clearly, if insufficient notice is commercially unreasonable behavior, then total lack of notice is also commercially unreasonable behavior. Savings Bank of New Britain v. Booze, supra. Nevertheless, the Alabama Supreme Court held in Valley Mining that commercially unreasonable behavior does not bar a creditor’s right to a deficiency judgment action.

Application of the Valley Mining rule, which we are bound by, to the facts at hand leads us to the conclusion that both insufficient notice and total lack of notice are commercially unreasonable behavior, but that neither bars a secured party’s recovery of a deficiency judgment. The court in Valley Mining did note that damages resulting from the creditor’s failure to meet the notice requirement may be set off against the total deficiency. Valley Mining, supra, 383 So.2d at 165. Provision for this remedy is found in UCC § 9-507. Because the debtor has this remedy, we see no reason to impose an additional penalty by barring the creditor’s action for a deficiency judgment.

In light of the above, we find that the learned trial court erred in granting defendants’ motions for directed verdicts against the bank on the ground that the bank’s failure to comply with § 7-9-504(3) barred its action for a deficiency judgment. Put another way, the trial court should have allowed the bank to try its claim, subject to a setoff for damages due to the bank’s noncompliance with § 7-9-504(3).

We note that Whitehead contends in brief that the trial judge erred to reversal by denying his motion to dismiss or transfer. As an appellee in this case, Whitehead should have filed a cross appeal to preserve the alleged error. Because Whitehead did not file a cross appeal, the issue is not properly before this court. Protective National Insurance Co. of Omaha v. Bell, Ala., 361 So.2d 1058 (1978); Hudson v. DuraWear Corp., Ala.Civ.App., 344 So.2d 182 (1977).

The bank’s claim for deficiency judgment and defendants’ counterclaim for loss due to the bank’s failure to comply with § 7-9-504(3) are so closely related, the aforestated error by the learned trial judge requires a reversal of the entire case. See, 5 Am.Jur.2d Appeal & Error § 964-65 (1962).

Defendants filed with this court motions to dismiss the appeal. These motions primarily were bottomed on the premise that the bank’s notice of appeal was inadequate. These motions were filed in June of 1980 and denied on August 5, 1980.

The defendants in brief on the merits and at oral argument asked this court to reconsider the August action. We have reconsidered and again denied the motion. We find the notice of appeal to be adequate to invoke the jurisdiction of this court as to all defendants. See, Edmondson v. Blakely, Ala., 341 So.2d 481 (1976) (fairness requires notice that an appeal has been taken in order to reverse a judgment); Williams v. Williams, 25 Tenn.App. 290, 156 S.W.2d 363 (1941) (when the words “et al.” are used, they refer to all defendants); Edmondson, supra (a notice indicating that an appeal has been taken from a judgment favorable to the appellee should give him notice that review might be sought as to matters not specifically set out in the notice); Committee Comment to Rule 2, ARAP (deficiencies relating to service of notices on opposing parties are not sufficient to warrant dismissal).

This case is due to be reversed and remanded.

REVERSED AND REMANDED.

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

      . We note that this case was decided after the trial court ruled in the instant appeal.


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    Raymond R. BOYD v. Florence BOYD.
    Civ. 2227.
    Court of Civil Appeals of Alabama.
    Nov. 5, 1980.

      John S. Bowman and Julia S. Waters, of Smith, Bowman, Thaggard, Crook & Cul-pepper, Montgomery, for appellant.
    Albert W. Copeland and E. Terry Brown, of Copeland, Franco, Screws & Gill, Montgomery, for appellee.
   BRADLEY, Judge.

This is a divorce case.

Raymond R. Boyd filed a petition in the Circuit Court of Montgomery County, Alabama on May 30, 1979 seeking a divorce from his wife, Florence Boyd, on the grounds of incompatibility of temperament and irretrievable breakdown of the couple’s marriage. After an ore tenus hearing, the trial court found that an irretrievable breakdown of the marriage of plaintiff and defendant had occurred and entered a decree divorcing them on October 11, 1979. In the decree the wife was given the exclusive right to occupy the couple’s Montgomery residence for two years from the decree, although she was permitted to sell it at any time during this period. After the expiration of this time interval, she would have an additional eight months within which to sell the house. If she had not sold it by the end of this period, the husband would have the right to sell it. Regardless of who eventually sold the house, however, the husband would receive forty percent of the proceeds from its sale while the wife would receive sixty percent of such proceeds. Mrs. Boyd was also awarded possession of all furniture in the home with the exception of the den furniture which the court gave to Mr. Boyd. The husband was awarded exclusive possession of the couple’s Florida condominium upon conditions identical to those imposed by the court upon the parties’ Montgomery residence except that (1) the husband would be entitled to receive sixty percent of the proceeds generated from its sale while the wife would be entitled to receive only the remaining forty percent of such proceeds, and (2) the wife would have the right to sell the condominium if the husband had not already sold it within two years and eight months of the court’s decree. Mr. Boyd was awarded sole possession of all furniture and furnishings in the condominium as well as a sailboat. Each party was directed to pay all taxes and insurance and to make all mortgage payments on his or her own residence. The husband was permitted to retain possession of his 1977 Mercedes and the wife was allowed to maintain possession of her 1977 Oldsmobile; however, each party was ordered to assume complete liability for all mortgage payments that remained to be paid on his or her respective automobile.

Paragraph seven of the court’s decree provided as follows:

7. For a period of three years from the date of the first periodic alimony payment hereunder, Husband shall pay to Wife the sum of $2,537.00 per month or until the Bell Road residence is sold, whichever event first occurs. When the residence of the parties is sold or after a period of three years from the first payment hereunder whichever event first occurs, alimony payments shall be reduced to $2,000.00 per month. Said payments of periodic alimony of $2,000.00 shall continue for the lifetime of the parties except that in the event Wife remarries, Husband shall have no further obligation to make alimony payments to Wife. The first payment of alimony shall be made on or before the 5th day of October, 1979, and further payments shall be made on or before the 5th day of each succeeding month.

Subsequent to the issuance of this decree, the husband, on October 18, 1979, filed a motion for rehearing with the court asking it to reduce its award of periodic alimony to the wife. After granting the motion and conducting such a hearing, the circuit court entered an amended decree of divorce on January 7,1980, modifying paragraph seven of the court’s original decree. This amended paragraph provided that:

For a period of two years and ten months from December 1, 1979 or until the Bell Road residence is sold, [whichever] event occurs first, Husband shall pay Wife the sum of $2,037.00 per month as periodic alimony. In addition to the aforementioned monthly periodic alimony, Husband shall pay to Wife the sum of $5,000.00 on June 1, 1980, and the sum of $6,000.00 for each year thereafter on the first day of June. When the residence is sold or after a period of two years and ten months from December 1, 1979, whichever event occurs first, periodic monthly alimony payments to Wife shall be reduced to $1,500.00 per month. The Husband shall continue in addition to the monthly payments to pay the Wife $6,000.00 as periodic alimony on the first day of June of each year. The periodic alimony payments of $5,000.00 in June, 1980 and $6,000.00 thereafter are payable on the first day of June each year and are not conditioned on any bonus being received by Husband in his employment. All periodic alimony payments ordered by this Court shall continue for the lifetime of the parties, except that in the event the Wife remarries, the Husband shall have no further obligation to make alimony payments to the Wife.

From this decree the husband has appealed, alleging that the trial court erred as a matter of law in dividing the couple’s real and personal property and abused its discretion in determining the amount of periodic alimony which defendant was to receive from plaintiff. We disagree and, for the reasons hereafter set out, affirm the trial court’s amended decree of divorce in all respects.

Plaintiff and defendant were married in 1956 while plaintiff was attending the Georgia Institute of Technology in Atlanta, Georgia. Shortly after their marriage, Mrs. Boyd took a job with Emory University’s medical school, where she assisted in eye research and attended night classes in chemistry and biology. However, she never earned a college degree and she quit her job at the University when her husband received his degree from Georgia Tech. A son and a daughter were born of the couple’s marriage but, at the time of trial in this cause, only the daughter was still dependent upon one or both of her parents for a substantial portion of her support. Mr. and Mrs. Boyd resided in Atlanta until 1968 when they moved to Montgomery and purchased their present home on Bell Road. The fair market value of this home was variously estimated at between $100,000 and $160,000. Although the correct value of all furnishings in the house was in substantial dispute, we believe that the trial court could have reasonably concluded that their market value lay somewhere between $15,000 and $60,000.

Mr. Boyd is currently a vice president of Blount International, Inc., a construction firm with offices not only in Montgomery but also in the Middle East. His projected salary for the year 1980-81 was estimated to be between $65,000 and $100,000, depending upon whether it included a bonus of approximately $30,000 which he might or might not receive due to certain financial setbacks which Blount had recently suffered in its Middle East operations. Uncon-troverted testimony tended to show that he had enjoyed substantial increases in his yearly salary and bonus for at least five years preceding the instant suit.

Mrs. Boyd earned approximately $3,600 in real estate commissions in 1974, had a renewable real estate broker’s license, was taking several night courses at Auburn University in Montgomery, and admitted on cross examination that she was physically able to seek gainful employment and did not assume that she was entitled to live off Mr. Boyd’s earnings for the rest of her life. No evidence was adduced, however, tending to show that she was employed at the time of the present litigation or that her earning prospects would be substantially greater than $3,600 per year in the foreseeable future.

We have repeatedly stated that:

The award of alimony and the division of property are matters within the discretion of the trial court and unless the record indicates a plain and palpable abuse of that discretion, the trial court s judgment is not subject to revision or reversal on appeal.

Dennis v. Dennis, Ala.Civ.App., 383 So.2d 187 (1980).

Moreover, in dividing a divorcing couple’s property or in awarding alimony to the wife or husband, the court should consider the earning ability of the parties, their future prospects, their age, health, station in life, duration of their marriage, and their conduct relative to the cause of the divorce. Goodwin v. Goodwin, Ala.Civ.App., 364 So.2d 678 (1978). We believe that the trial court’s award of alimony and division of property in the case at bar reflect a studied and proper evaluation of each of these factors and do not rise to the level of a plain and palpable abuse of discretion necessitating their revision to any degree.

Plaintiff earnestly contends (1) that the trial court abused its discretion in awarding over one-half of plaintiff’s net income to defendant and (2) that it erred as a matter of law in awarding over sixty percent of the total value of the couple’s realty and personalty to defendant. We cannot agree. The following excerpt from the recent case of Hall v. Hall, Ala.Civ.App., 382 So.2d 1139 (1980), is dispositive of the first contention.

The husband contends in brief that the amount of alimony awarded to the wife exceeds one-half of the husband’s net income and is therefore excessive. In support of his contention the husband relies on the ease of Brady v. Brady, 144 Ala. 414, 39 So. 237 (1905). Although we do not concede that the alimony award in the case sub judiee is more than half of the net income of the husband, it is true that the supreme court said in Brady that the allowance to the wife should not exceed one-half of the husband’s net income; however, Brady was not a divorce case; it involved separate maintenance for an undivorced wife. We believe there are factors to be considered by a court in a divorce case that are not available for consideration in a separate maintenance action. Consequently we do not consider Brady to be apt authority in deciding the limits of an alimony award in a divorce case.
To avoid any misunderstanding, however, we recognize that we said in Self v. Self, 49 Ala.App. 665, 275 So.2d 345 (1973) that the Brady case indicates that an alimony award to the wife alone should not exceed one-half of the husband’s net income. But we went on to say that each case must depend upon its own facts and there is no mathematical formula for determining such an award. And, we did not consider, even in Self, that Brady established a hard and fast rule for alimony awards in divorce cases. Consequently, we do not consider that the trial court is limited in its award of periodic alimony to one-half of the husband’s net income in all cases. [Emphasis theirs.]

As to the second contention, this court has occasionally permitted one party to a divorce proceeding to retain over one-half of the total value of all real and personal property accumulated by both spouses during the course of their marriage. See Thompson v. Thompson, Ala.Civ.App., 377 So.2d 141 (1979); Stewart v. Stewart, Ala. Civ.App., 341 So.2d 490 (1977); Helms v. Helms, 54 Ala.App. 551, 310 So.2d 475 (1975). But, in each instance, we were careful to point out that each case is to be decided on its own facts and an equitable division of marital property is to be made, not an equal division. The facts in the case at bar support the conclusion that an equitable division of the property was made by the trial court.

Defendant has requested this court to award her $1,500 in attorneys’ fees for services rendered by her attorneys on this appeal. We believe that $750 is a reasonable fee for such services, and award that amount to defendant for her attorneys.

The judgment of the circuit court is affirmed.

AFFIRMED.

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


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    HUBBARD BROTHERS CONSTRUCTION CO., INC., and R. V. Hubbard v. Phillip A. BRACKNER and Marsha W. Brackner.
    Civ. 2238.
    Court of Civil Appeals of Alabama.
    Nov. 5, 1980.
    James W. May of Odom, May & DeBuys, Birmingham, for appellants.
    John L. Cole, Birmingham, for appellees.
   BRADLEY, Judge.

This is an appeal from a jury verdict rendered in favor of appellees Phillip and Marsha Brackner against appellants Hubbard Brothers Construction Company, a corporation licensed to do business in Alabama, and R. V. Hubbard, president of the company, for $7,000.00 in damages resulting from appellants’ breaches of a construction contract and express and implied warranties. In view of the fact that appellees failed to adduce any evidence of the diminished value of their home due to these breaches at the time they first obtained possession of it, we reverse and remand for a new trial.

On January 5, 1977 Hubbard Brothers Construction Company, acting by and through its president, R. V. Hubbard, contracted with Phillip and Marsha Brackner to build a house for them in Bessemer, Alabama and to convey to them the subdivision lot on which the house was to be built for a total contract price of $43,500.00. Ap-pellees later received both a warranty deed to the property and a separate warranty from appellants whereby the latter expressly warranted that the dwelling they were then building for appellees would be “constructed in substantial conformity with the plans and specifications ... which have been approved in writing by the Federal Housing Commissioner . . .. ” The Brack-ners moved into their newly completed home around February 28, 1977. Almost immediately thereafter appellees became aware of numerous defects, such as leaks and cracks, in the construction of their home which appellants either neglected to or were unable to remedy.

Appellees instituted the present action against appellants and William E. Mays, a construction inspector for the Veterans Administration, on June 26,1978, alleging that appellants had breached the construction contract of January 5,1977 signed by appellants and appellees, the FHA warranty and any implied warranty of fitness or habitability, and had defrauded appellants, that Mays “negligently, recklessly and/or wantonly gave written approval [of the construction of their house] as being a satisfactory construction job when in fact the construction job was done in an inferior, unacceptable, and totally unworkmanlike manner,” and had also defrauded the Brackners. Appellees prayed for damages or, in the alternative, for either specific performance of the terms of the contract and warranty or a setting aside of the conveyance of property to them. Appellants answered denying the allegations of fraud, breach of contract, and breach of any warranty, express or implied. Mays filed a separate answer denying the allegations of negligent or wanton misconduct against him contained in the appellees’ complaint.

The case proceeded to trial but during the course thereof the court dismissed William Mays as a party defendant and granted appellants’ motion for a directed verdict with regard to appellees’ allegations of fraud. At the close of all the evidence, appellants’ attorney moved for a directed verdict in his clients’ favor as to the remaining allegations in appellees’ complaint, contending, inter alia, that appellees had failed to prove any damages resulting from appellants’ conduct since the Brackners had neglected to produce any evidence respecting the diminished value of their home in its defective condition at the time appellants surrendered possession of it to them. This motion was denied but the trial judge instructed the jury that:

The measure of damages for you to consider in the event that you find in favor of the plaintiffs and against the defendants Hubbard is the difference in the reasonable market value of the house as it was in in its condition at the time the plaintiffs received it and the reasonable market value of the house as it would have been had the house been constructed substantially according to the contract or warranty if constructed in a good and workmanlike manner.

Neither appellants nor appellees objected to the form or substance of this oral instruction. As previously noted, the jury returned a verdict in favor of appellees and assessed their damages at $7,000.00. Appellants subsequently filed a motion for judgment notwithstanding the verdict and a motion for a new trial claiming, among other things, that appellees had failed to prove that they had suffered any damages as a consequence of appellants’ conduct. These motions were denied and this appeal followed.

At the outset, we note that both appellants and appellees were apparently satisfied with the trial judge’s instruction as to the proper measure of damages in this case. So are we. See Fox v. Webb, 268 Ala. 111, 105 So.2d 75 (1958) (breach of contract); Bonds v. Akins, 284 Ala. 273, 224 So.2d 630 (1969) (breach of express warranty); Sims v. Lewis, Ala., 374 So.2d 298 (1979) (breach of implied warranty of fitness and habitability). Although appellees did demonstrate at trial by competent testimony that the reasonable market value of their home if properly constructed would have been approximately $43,500.00, they failed to introduce any evidence tending to prove the reasonable market value of their home in the condition in which they originally received it from appellants. Hence, the jury’s verdict was based upon mere speculation and conjecture and cannot stand. See Crommelin v. Montgomery Independent Telecasters, Inc., 280 Ala. 391, 194 So.2d 548 (1967). Citing American Life Insurance Co. v. Shell, 265 Ala. 306, 90 So.2d 719 (1956), appellee earnestly contends that the jury’s assessment of damages was entirely proper since mere uncertainty as to the amount of a plaintiff’s damages has been held not to preclude his right to recover same. We cannot agree. As Shell clearly indicates, this rule of the law of damages is applicable only “where the defendants’ wrongful act has made it difficult for the plaintiff to show with reasonable certainty the amount of his loss.” We cannot say from our perusal of the record that appellees have convincingly demonstrated that appellants’ wrongdoing made it impossible or unreasonably difficult for them to produce admissible evidence tending to show with reasonable certainty the diminished value of their home at the time they initially received it from appellants.

The judgment of the circuit court is reversed and the cause remanded.

REVERSED AND REMANDED.

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


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    STATE of Alabama, DEPARTMENT OF REVENUE v. KELLY SUPPLY COMPANY, INC.
    Civ. 2312.
    Court of Civil Appeals of Alabama.
    Nov. 5, 1980.
    Bill Thompson, Asst. Counsel, Department of Revenue, and Asst. Atty. Gen., for appellant.
    C. E. Isom of Wilson, Propst, Isom, Jackson, Bailey & Bolt, Anniston, for appellee.
   BRADLEY, Judge.

This is an appeal by the State Department of Revenue (State) from a final decree entered by the Circuit Court of Calhoun County annulling and declaring void the Department’s assessment of sales taxes totalling $984.44 against Kelly Supply Company (Kelly) for sales of building materials to a general contractor engaged in making additions and alterations to the Young Men’s Christian Association (YMCA) building in Anniston, Alabama. We affirm.

The State and Kelly entered into a partial stipulation of facts, which was to be considered by the court at the hearing along with any other evidence, including exhibits, that might be offered by the parties. At the hearing, Kelly presented the testimony of three witnesses; the State offered no testimony. The following pertinent facts were revealed: The Anniston YMCA, acting through its president, John E. Kelly, signed a written construction contract with McWhorter and Company, a general construction contractor, by which McWhorter promised to make certain additions and alterations to the YMCA’s recreational facilities in exchange for a total consideration equal to the cost of the work performed by it plus a ten percent fee for overhead and profit. McWhorter subsequently notified its building materials suppliers that, by virtue of § 40-9-9 of the 1975 Code of Alabama, any sales of materials to McWhorter which might be used on the YMCA project would be exempt from assessment for sales taxes and that all invoices which they might submit to McWhorter as evidence of the cost of any materials which they might provide it for use on the project should be made out in the following form:

YMCA

c/o McWhorter and Co., Inc.

P. 0. Box 907

Anniston, Ala. 35201

Kelly Supply Company, owned by John E. Kelly, sold a wide variety of building materials to McWhorter for ultimate use on the YMCA construction project. Kelly introduced into evidence certain invoices reflecting such sales which were completed in accordance with McWhorter’s instructions to its suppliers, but it also offered into evidence invoices which did not comply with these instructions.

McWhorter and Company drew checks on its own account to pay Kelly Supply for the materials it delivered to the YMCA jobsite. However, McWhorter testified that Kelly Supply had been instructed to bill the YMCA for any materials delivered to the jobsite. Once the bill was received, McWhorter and Company would check the invoice and forward it to the architect who would, after reviewing it, send it to the YMCA. The YMCA would then send McWhorter and Company a check to cover the cost to McWhorter of purchasing the materials.

Mr. McWhorter stated that he was instructed by the YMCA building committee to act on its behalf in issuing purchase orders for supplies to the various suppliers of materials for the project, and that in every instance he instructed the suppliers to bill the YMCA.

Mr. John Kelly testified that he was the president of the YMCA and was also a member of its finance committee at the time of the matters involved in the present suit. He stated that as a supplier of materials for the YMCA project he considered the YMCA obligated to pay for the materials which his company delivered to it.

In its decree the trial court found that McWhorter and Company made payments for building materials supplied by appellee for use on the YMCA project to Kelly as an agent of the YMCA and that the YMCA’s credit was obligated for the purchases of these materials. The State argues here that these findings of the trial court are erroneous, and that its judgment should be reversed. We disagree.

Appellant and appellee agree, as we do, that if the trial court was correct in concluding that McWhorter acted as the YMCA’s agent in purchasing building materials from Kelly for use on the construction project for the YMCA, then, by virtue of § 40-9-9 of the 1975 Code of Alabama, Kelly Supply would not owe the State of Alabama nor the City of Anniston any sales taxes on all materials which it sold to McWhorter for use in such project. Since the trial court in this cause heard or received all the evidence in an ore tenus proceeding, its findings of fact are binding upon this court if they are supported by any credible evidence and are not palpably wrong or manifestly unjust. Dicon, Inc. v. Great Atlantic & Pacific Tea Co., Ala., 381 So.2d 18 (1980); First National Bank of Birmingham v. Currie, Ala., 380 So.2d 283 (1980); Gertz v. Allen, Ala., 376 So.2d 695 (1979). Although the construction contract initialled by the YMCA and McWhorter and Company did not expressly or impliedly indicate that McWhorter would function as the YMCA’s agent in purchasing building materials from suppliers for use on the YMCA’s construction project, Earlon McWhorter, president of McWhorter and Company, testified without objection on direct examination that both contracting parties had orally agreed that McWhorter, as a member of the YMCA’s construction committee, would initiate all purchase orders for the project on behalf of the committee and have all billings for materials supplied pursuant to such orders made out to it. He advised all potential suppliers of materials for the project to submit their bills for same directly to the YMCA and stated that Kelly Supply, in preparing its bills for building materials which it supplied to McWhorter, followed such advice.

Keeping in mind the principle that “[t]he relationship of agency is created as the result of conduct by the parties manifesting that one of them is willing for the other to act for him subject to his control, and that the other consents so to act,” (emphasis supplied), Knight Iron & Metal Co. v. Ardis, 29 Ala.App. 600, 199 So. 712 (1940), rev’d on other grounds, 240 Ala. 305, 199 So. 716 (1941), we cannot say that the trial court’s evidentiary finding that McWhorter and Company functioned as the YMCA’s agent for purchasing building materials from ap-pellee for use on the YMCA’s construction project was not supported by any credible evidence and was palpably wrong or manifestly unjust. Cf. State v. Ball-Co Contractors, Inc., Ala.Civ.App., 372 So.2d 331 (1979), cert. denied, Ala., 372 So.2d 335 (1979) (parties stipulated that general contractor was not purchasing agent for tax exempt entity). It follows that Kelly Supply Company is not liable to the State of Alabama nor to the City of Anniston for the payment of any sales taxes on any building materials which it sold to McWhorter and Company for ultimate use on the Anniston YMCA construction project.

The judgment of the circuit court is affirmed.

AFFIRMED.

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