author: ALMON, Justice.

text:
    John G. CROMMELIN, Jr. and wife, Lillian E. Crommelin v. Dennis G. FAIN and wife, Carol K. Fain.
    79-600.
    Supreme Court of Alabama.
    July 31, 1981.
    Rehearing Denied Aug. 28, 1981.

      Julian L. McPhillips, Jr., Montgomery, for appellants.
    G. Houston Howard, II, of Howard & Dunn, Wetumpka, for appellees.
   ALMON, Justice.

John Murrell, Lula Fain and Beulah Fain held as tenants in common title to approximately eighty acres of land in Elmore County, Alabama. Lula and Beulah Fain each owned a one-quarter undivided interest, and Murrell owned the remaining one-half undivided interest in the property. A spring-fed stream originates on and crosses through a portion of this property and, like at least six other streams in the area, empties into swimming pools and fishing ponds constructed and owned by an abutting landowner John G. Crommelin, Jr. These pools are operated by the Crommelin family as a commercial enterprise and serve as a recreational area for numerous Elmore County residents and others who pay an admission fee for the use of .the pools, ponds and adjoining facilities.

In 1940, Murrell entered into the following agreement with Crommelin:

Whereas, John Samuel Murrell, is the owner of an undivided interest in and to the following described lands situated in Elmore County, Alabama, to-wit:
The South half of the Southeast quarter of Section 30, Township 18, Range 19, containing 80 acres, more or less,
and whereas, John G. Crommelin, Jr., owns land in the vicinity of said lands above described, and natural streams and surface waters on the land of said Mur-rell run through and over the lands of said Crommelin, and
Whereas, said Crommelin is desirous of preventing any obstruction of the flow of said surface waters and streams and of preventing any pollution of said waters which would in any wise affect the lands of said Crommelin or any lands [in] which said Crommelin may hereafter acquire any interest,
Now, Therefore, in consideration of the premises, and in further consideration of the sum of Thirty-Five and no/100 Dollars in hand paid by said John G. Crommelin, Jr. to the said John Samuel Murrell, and in further consideration of other good and valuable considerations, the receipt of which is hereby acknowledged, I, the said John Samuel Murrell, a widower, hereby agree to the following: First: That I will forever refrain from obstructing any stream on the lands here-inabove described and will not in any manner do any act or permit any act which would directly or indirectly pollute or obstruct waters of said streams or pollute any surface waters on said above described lands, and in particular will prevent pollution by such acts as the emptying of sewage on said lands or the erection of stock corrals near running streams such as would pollute said waters.
Second: That the said Crommelin be and he is hereby given the right and privilege of entering upon the above described lands and doing such acts as may be necessary to insure the carrying out the provisions of the said contract, and in particular, to remove any obstruction or retardation of the flow of the waters over said lands, and/or sources of pollution, and may also deepen or widen the beds of said streams so as to facilitate and insure the flow of waters over and across said lands.
This agreement shall be construed as a covenant running with the lands of said Crommelin and of the said Murrell, and shall bind said Murrell, his heirs, executors, administrators and assigns, same shall run in favor of the said Crommelin, his heirs, executors, administrators, and assigns, of the lands which said Cromme-lin now owns or other lands affected thereby in which said Crommelin may hereafter acquire an interest.
TO HAVE AND TO HOLD to the said John G. Crommelin, Jr., his heirs and assigns, forever.

This agreement was recorded in the Office of the Probate Judge of Elmore County.

Six months after he executed this agreement with Crommelin, Murrell conveyed his one-half undivided interest in the property to Lula Fain. Two years later, Beulah Fain conveyed her one-quarter undivided interest to Lula, thus vesting in her sole ownership of the property.

In 1978, Lula Fain conveyed four acres of this property to Dennis and Carol Fain. Six months later she conveyed to them a ten foot strip which runs from their property to the stream and spring boils. Upon this strip Dennis Fain constructed a water system which runs from a pump located in the area of the spring boils to his newly built house. The water drawn from the stream through this system is used for domestic purposes, i. e., drinking, bathing, cooking, flushing toilets, washing clothes and watering the grass. The waste water from these activities flows into a septic tank Dennis Fain built on his property.

Soon after the Fain home and improvements were completed, Crommelin sued to enjoin the Fains from drawing water from the stream or operating their septic tank because, according to Crommelin, those activities both decreased the free flow of water and, because the concrete culvert Fain installed over the spring boils stirred up mud, polluted the remaining water which flows into his pools. Crommelin also sought damages for breach of covenant. The trial judge, hearing the evidence ore tenus, denied Crommelin’s requested relief. Crommelin raises several issues on appeal.

I

Crommelin contends the trial judge’s conclusion that the covenant executed by Mur-rell is not binding upon the Fains is in error. He argues that the covenant is binding by way of either ratification or a novel theory of “covenant merger.” Under this theory, he argues that when Lula acquired Murrell’s burdened one-half interest, that burdened interest merged with her unburdened one-quarter interest and thus bound the entire three-quarter interest and, further, when Lula acquired Beulah’s unburdened one-quarter interest, the entire interest became bound by the covenant. We reject both arguments.

When a tenancy in common exists, each cotenant, regardless of the quantum of his proportionate share, has an interest in and right to use all of the property held in common; no one cotenant has the right to the exclusive use or possession of any portion of the property. The only limitation upon a cotenant’s use and enjoyment of the property is that he must not do any act which would interfere with his cotenant’s rights, use and enjoyment of the common property. See 86, C.J.S. Tenancy in Common §§ 17-24 (1954).

As a general rule a cotenant may, without the knowledge or consent of his coten-ants, deal with his separate interest or any fractional interest thereof as freely as he can with any other property he may own. Lee v. Lee, 271 Ala. 5, 122 So.2d 139 (1960); Moore v. Foshee, 251 Ala. 489, 38 So.2d 10 (1948). Thus, he may convey by deed, Moore v. Foshee, supra; lease, Sun Oil Co. v. Oswell, 258 Ala. 326, 62 So.2d 783 (1953); license another to enter upon the property, Jasper Land Co. v. Manchester Sawmills, 209 Ala. 446, 96 So. 417 (1923); or mortgage his interest, Giddens v. Reddoch, 207 Ala. 297, 92 So. 848 (1922).

A cotenant may not, however, without the consent of the other cotenants, convey, lease, license or mortgage an interest in the property greater than that which the individual cotenant owns. In 20 Am.Jur.2d Cotenancy and Joint Ownership § 95 (1965), it is stated:

Since there is, merely by reason of the existence of a cotenancy, no agency relationship between the cotenants, * * * one cotenant cannot ordinarily transfer or dispose of the interest of another coten-ant in such manner as to be binding, unless duly authorized to do so. Nor can a cotenant, as a rule, bind his cotenants by any unauthorized attempt to alienate or encumber the entire estate or any specific part or portion thereof, or an undivided interest in any such portion. In the absence of authorization or ratification on the part of his cotenants, any dealing on the part of one cotenant in relation to the common property is a mere nullity insofar as their interests are concerned.

In 20 Am.Jur.2d Cotenancy and Joint Ownership § 96 (1965), appears the following:

While an individual cotenant can deal with his own moiety or interest as freely as he can with any other property he may own, any alienation or encumbrance by one cotenant of the common property or of his cotenants’ interest therein, in the absence of authorization or ratification on the part of the other cotenant, is a mere nullity insofar as their interests are concerned. But a transaction of this kind is void only as to the cotenants. It is not void as against the actor and may bind his undivided interest. In a proper case the courts will accord to the persons with whom he has dealt such relief as the facts may warrant insofar as that can be done without prejudice to the rights of the nonacting cotenant.

See Giddens v. Reddoch, 207 Ala. 297, 92 So. 848 (1922); Kidd v. Borum, 181 Ala. 144, 61 So. 100 (1913); Howze v. Dew, 90 Ala. 178, 7 So. 239 (1890).

The grant of an easement by one eoten-ant poses a different problem and is subject to a different rule:

One cotenant cannot, without the join-der of the others, grant an easement in the land. * * * A grant of an easement, made by one cotenant, would seem to be invalid for the reason that such a grant of an easement in an undivided interest in land is necessarily a nullity, so far as concerns the actual utilization of the land by the grantee. It involves an attempt by one cotenant, not to substitute another as cotenant in his place, as in the case of a conveyance or lease of his interest, but to enable a person, not a cotenant, to interfere, it may be perpetually, with the possession of the other cotenants.

Vol. II, Tiffany, The Law of Real Property, § 456 (3d ed. 1939). Stated more succinctly, “[sjuch a grant involves more than the grant or lease of his individual interest in a part of the property, since the easement, if given effect, would interfere with the rights of ownership in the property of all cotenants.” Vol. II, American Law of Real Property, § 6.12 (1952).

The Murrell-Crommelin covenant purported to pertain solely to Murrell’s undivided interest. However, because Murrell was obligated to not “permit any acts” which would obstruct or pollute the stream and because Crommelin was given the right to enter upon the property and remove any obstruction or source of pollution, the covenant by necessity involved more than just Murrell’s undivided interest in the property. To that extent the Murrell-Crommelin covenant can be analogized to an easement.

In Texas Mortgage Company v. Phillips Petroleum Company, 470 F.2d 497 (5th Cir. 1972), two groups of cotenants each owned an undivided one-half interest in a parcel of property. One group, the “Korge” group, granted to Phillips Pipeline Company an easement to construct a single pipeline across the common property. Two days later the other group, the “Turner” group, granted Phillips Pipeline’s parent corporation, Phillips Petroleum, the right to lay “a pipeline or pipelines” across the same property. Phillips Pipeline constructed a single pipeline; Phillips Petroleum constructed none.

M. W. Lee became a tenant in common with the Korge group when he acquired the one-half interest held by the Turner group. Lee later acquired the one-half interest owned by the Korge group. Ten years later Phillips Petroleum entered the property and, over Lee’s objections, constructed a second pipeline. Lee then successfully prosecuted in federal district court an action against both Phillips Petroleum and Phillips Pipeline in trespass to try title. The court recognized the general rule that one coten-ant cannot grant an easement over common property without the consent of the other cotenants, and stated:

The grant of the multiple-line easement by the Turner group of cotenants to Phillips Pet[roleum] would have “become valid and effective for the purpose of binding the grantor, if supplemented by exactly similar grants to the same person from the other cotenants. . . .”—1 H. T. Tiffany, supra, at p. 685. However, the Turner grant was never exactly supplemented. Instead, the only precedent authority from the Korge group of coten-ants was the single-line grant which the jury found was intended by the parties to limit the owner of that grant to the construction, maintenance and operation of only one pipeline. Therefore, while the Turner-Korge cotenancy existed, the un-supplemented Turner multiple-line easement was ineffective to grant to. Phillips Pet[roleum] the right to construct more than a single pipeline over said land. * *

470 F.2d at 500.

Addressing the question of Lee’s rights upon acquisition of the Turner and Korge interests, the court stated:

* * * when Lee acquired the Turner group’s interest and was briefly a coten-ant with the Korges, and even later, after he acquired the Korge group’s interest in the land — merging the fee title into himself — his title was not subject to the multiple-line easement which the Turners had granted Phillips Pet[roleum]. The Turner multiple-line grant, although in the plaintiff’s chain of title, gave no more rights to defendants after title was merged than before * * *. In sum, the union of cotenant’s interests in a single title terminates the cotenancy, but does not by itself alter, enlarge, or diminish the rights of third persons which were conferred during the cotenancy. * * * When M. W. Lee purchased the combined rights of the Turner and Korge groups in the land, he purchased their respective interests subject to whatever rights had been granted to defendants by them; and was estopped to deny the validity of whatever rights of title defendants so received. * * * This estoppel, however, does not aid defendants here. As pointed out above, the inconsistent grants of the two different groups of cotenants failed to give defendants any vested right or title by which they could have placed a second pipeline upon the jointly owned land of the Turner and Korge cotenants. Therefore, the plaintiff[ ], standing in the shoes of the Korg-es, [is] entitled to assert the Korge group’s right to oppose the construction of the second pipeline. * * *

470 F.2d at 500 (citations omitted).

Applying the rule and rationale of Texas Mortgage to the instant case, we reject Crommelin’s covenant merger theory and conclude that because neither Lula nor Beulah Fain consented to the “easement” or covenant granted by Murrell, it was ineffective to bind their respective rights in the common property either at the time Murrell executed the instrument or at the time Lula acquired Murrell’s interest in the property.

Without elaborating upon our reasoning, we conclude that the facts in this case do not support Crommelin’s argument that the covenant was ratified by either Lula, Beulah or Dennis Fain. Thus, we find no error in the trial judge’s determination that the covenant was not binding upon any of the Fains.

ii

Crommelin contends the trial judge erred in failing to either find or rule upon his prescriptive rights. It is his contention that such rights arose from his acts of entering upon the Fain-Murrell tract, dynamiting beaver dams and clearing and scrubbing the streambed.

We note that this is not a case where an upper riparian owner asserts prescriptive rights against a lower riparian owner, but instead is a case where a lower riparian owner alleges the acquisition of prescriptive rights in the water flowing over the land of an upper riparian owner. On this point it has been stated:

A prescriptive right may be acquired against lower riparian owners by complying with the requisite essentials for acquiring such rights. Upon the other hand, owing to the equal rights of riparian owners to the use of the waters of a certain stream, and that under the common law their rights are not lost by the non-use of the water, it is held that a lower riparian owner can not acquire by prescription the right to receive the water of the stream for some extraordinary use of the water in excess of his natural rights as against the upper riparian owners, since a lower use in no way interferes with the natural flow above, and, therefore, there is no invasion of the rights above. In other words, it is held that there is no such thing as a prescriptive right of a lower riparian proprietor to receive the waters of the stream as against the upper owners. The theory upon which the authorities hold this rule is that if a riparian owner diverts water which otherwise would flow down to a still lower owner, that use is adverse. But upon the other hand, the water which comes to him would come in any case, and there is nothing adverse to any one in merely receiving it that could be said to give a prescriptive right enabling him to prevent the reasonable use of the water by an upper owner. In other words, if no wrong is done, no prescriptive right can be acquired.

Kinney, Irrigation and Water Rights, § 1041, pp. 1862-64 (2d ed. 1912) (citations and footnotes omitted).

As is clear from the foregoing statement, one of the essential elements for the acquisition of prescriptive rights is that the use of the water must be adverse or hostile in character such that it invades the rights of the riparian owner. See 93 C.J.S. Waters §§ 159 & 162 (1956); 78 Am.Jur.2d Waters § 350 (1975). This element is absent in the present case.

Crommelin’s activities in and around the stream were conducted with Murrell’s permission under the covenant and will not, at least as to Murrell, provide a basis for claim of prescription. Stewart v. White, 128 Ala. 202, 30 So. 526 (1901). Nor do we think those activities were adverse to the rights of Lula and Beulah Fain. The two sisters, as riparian owners, had the common law right to

the natural flow of the water of [the] stream through or along [their] land, in its accustomed channel, undiminished in quantity and unimpaired in quality, except as the accustomed flow may be changed by the act of God, and except as may be occasioned by the reasonable use of the stream by other like proprietors.

93 C.J.S. Waters § 9, pp. 608-10 (1956). Crommelin’s acts of blasting beaver dams and clearing and scrubbing the streambed in no way interfered with these rights. There was no diversion of water from the Murrell-Fain tract either before it reached the tract or while it was coursing over the tract. Crommelin did not actively deny or deprive either Lula or Beulah of the right to use the water if they so desired; his actions merely facilitated the flow through the Murrell-Fain tract of that water which would eventually flow onto his land in any event. These actions and their resulting effects fall short of the adverse or hostile acts necessary to support a claim of prescription. Given that Crommelin acquired no prescriptive rights in the stream, it follows that the trial judge cannot be put in error for failing to either find or rule upon those rights.

III

In his final decree, the trial judge stated

That the actions of the defendants with respect to the stream which feeds the swimming pool of the plaintiffs are legal and reasonable and pose no clear, immediate and illegal threat of danger to the property interest of the plaintiffs.

Crommelin argues that this is erroneous in that it denies his riparian rights. We disagree.

It is beyond dispute that both Crommelin and Fain, as landowners abutting a stream, have certain riparian rights. We do not think that Crommelin’s rights have been unlawfully violated by Fain’s tap. The water drawn by Fain is used solely for domestic purposes, i. e., drinking, cooking, bathing, washing clothes and flushing toilets. The waste water is not returned to the stream untreated, but is filtered through Fain’s septic tank. It has long been established that

every riparian proprietor has an equal right to have the stream flow through his lands in its natural state, without material diminution in quantity or alteration in quality. But this rule is qualified by the limitation * * * that each of said proprietors are entitled to a reasonable use of the water for domestic, agricultural, and manufacturing purposes.

North Alabama C. I. & Ry. Co. v. Jones, 156 Ala. 360, 366-67, 47 So. 144, 146 (1908) (citations omitted). See also, Elmore v. Ingalls, 245 Ala. 481, 17 So.2d 674 (1944); Jones v. Tennessee Coal, Iron & R. Co., 202 Ala. 381, 80 So. 463 (1918); Ulbricht v. Eufaula Water Co., 86 Ala. 587, 6 So. 78 (1888).

Dennis Fain’s use of the water is for domestic purposes and the amount used is reasonable. The facts that as much as thirty percent of Crommelin’s pool water comes from the stream and that in the dry season the supply will be diminished by Fain’s use cannot operate to give Crommelin any greater rights or make Fain’s use unreasonable. Just as an upper riparian owner may not take from the stream a “quantity [of water] sufficient to affect injuriously the rights of the proprietor below,” Stein v. Burden, 29 Ala. 127 (1856), a lower riparian owner may not draw all of the water and then complain that the upper riparian owner’s reasonable use unreasonably affects his rights in the water.

IV

During trial, the judge sustained defendants’ objections to testimony which Crommelin contends is relevant to the issues of prescriptive rights and ratification. Because Crommelin acquired no prescriptive rights in the Murrell-Fain tract and because the ratification theory was unsupported by the facts, the exclusion of this evidence cannot, as Crommelin contends, be deemed reversible error.

V

Crommelin contends t.he trial judge erred to reversal by denying his request for a jury to determine all the issues triable by a jury. We disagree.

The original complaint filed by Cromme-lin was amended and subsequently supplemented and amended again. Several counts in his complaint were dismissed upon the defendants’ motion. At the time of trial, under the caption “PART ONE — ACTIONS IN EQUITY,” Count I of the complaint alleged that “the taking of said water from said stream * * * will diminish the water available for the Plaintiffs’ operation of Plaintiffs’ swimming pool and fishing lakes,” that “the installation of a septic tank * * * constitutes an actual and potential source of pollution to the water supply used by the Plaintiffs” and further that the acts of the defendants “obstruct[] the free flow of waters which are the source of water supply for the operation of the swimming pool and fishing lakes of the Plaintiffs and diminish the amount of water available to the Plaintiffs * * According to the complaint, the acts of the defendant violated the covenant and, “[a]s a result of the defendants’ activities * * * plaintiff John G. Crommelin, Jr.’s contractual rights of covenant [have] been violated. * * *.” In Count 11(a), it was alleged that the defendants’ activities violated Crommelin’s “common law riparian rights to the unobstructed and unpolluted use of the streams, springs and rivulets”; in Count 11(b) it was alleged that the defendants’ activities violated Crommelin’s common law prescriptive rights. As to Counts I, 11(a) and 11(b), Crommelin prayed for injunctive relief.

In Count III, under the caption “PART TWO — ACTIONS-AT-LAW,” it was alleged that the covenant was valid and binding upon the defendants, that the defendants knowingly and wilfully violated the contract by obstructing and/or polluting the stream, and

[a]s a result of said breach of contract, plaintiffs’ riparian rights were violated and the waters used in plaintiffs’ pool at Harrogate Springs were polluted and obstructed. In accordance with paragraph Second of the covenant authorizing plaintiff John G. Crommelin, Jr. to do “such acts as may be necessary to insure the carrying out the provisions of the said contract” plaintiffs have suffered the damages of the legal expenses of hiring an attorney, of taking depositions, and of other necessary legal expenses to enforce the covenant. The aforesaid pollution, obstruction, and legal expenses have all caused plaintiffs great damage, [emphasis added]

As to this count, Crommelin prayed for both compensatory and punitive damages.

Crommelin concedes that Counts I, 11(a) and 11(b) were properly triable by the judge alone in that the relief sought was equitable in nature. He contends, however, that a jury should have passed upon the allegations contained in Count III, in that the relief sought was damages.

Rule 38(a), ARCP, provides that “[t]he right of trial by jury as declared by the Constitution of Alabama or as given by a statute of this state shall be preserved to the parties inviolate.” Judicial construction of this rule and its counterpart in the Federal Rules of Civil Procedure has given rise to the rule that when both legal and equitable issues are joined in one case the order of trial must be arranged so that the decision of the equitable issues by the judge does not operate to deny the trial by the jury of the legal issue. See, e. g., Dairy Queen v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Beacon Theatres v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959); Cumens v. Garrett, 294 Ala. 535, 319 So.2d 665 (Ala.1975); Poston v. Gaddis, 335 So.2d 165 (Ala.Civ.App.), cert. denied 335 So.2d 169 (Ala. 1976). The foregoing rule notwithstanding, we do not think the denial of the jury trial in this ease mandates the reversal of the judgment below.

Setting to one side the allegations in Counts I, II(a) and II(b) for which Cromme-lin requested equitable relief, and focusing upon the allegations in Count III, we note that those allegations are couched in terms of breach of contract. The trial judge was called upon to determine whether, as a matter of law, the covenant was binding upon the defendants. He ultimately and correctly determined that it was not binding. It follows that if the covenant was not binding upon the defendants, they could not, as a matter of law, have breached that contract. Thus, even if a jury had been empaneled to hear the case, a directed verdict for the defendants on Count III would have been in order. We do not think that, under these circumstances, Rule 38(a) mandates a reversal for a trial of an issue which the plaintiff never would have been entitled to put before a jury if one had been present.

VI

Finally, Crommelin argues that the trial judge erred in failing to issue findings of facts and conclusions of law on the questions of prescriptive and riparian rights, why the covenant was not binding upon the Fains, and why a trial by jury was denied, as Crommelin had requested at the close of all the evidence.

Rule 52, ARCP, according to which Crommelin requested findings of fact and conclusions of law, provides in part:

In all actions tried upon the facts without a jury * * * the court may upon written request and shall when required by statute, find the facts specially and state separately its conclusions of law thereon * * *.

(emphasis added) The language of this rule makes clear that the issuance of findings of fact and conclusions of law is discretionary with the trial judge. See Provident Life & Accident Ins. Co. v. Hanna, 294 Ala. 37, 311 So.2d 294 (1975). There was no error in failing to issue the findings of fact and conclusions of law.

For the foregoing reasons, the judgment below is due to be affirmed.

AFFIRMED.

TOLBERT, C. J. and FAULKNER, EM-BRY and ADAMS, JJ., concur.


source: Caselaw Access Project

author: ALMON, Justice. PER CURIAM.

license: Public Domain

text:
    Clifton J. MOOR and Gladys L. Moor v. JEFFERSON FEDERAL SAVINGS & LOAN ASSOCIATION, et al.
    79-920.
    Supreme Court of Alabama.
    July 31, 1981.
    Rehearing Denied Aug. 28, 1981.
    Roger W. Lee of Harrison, Jackson & Lee, Birmingham, for appellants.
    Douglas Corretti and Robert H. Adams of Corretti & Newsom, Birmingham, for ap-pellee Jefferson Federal Savings & Loan Association.
    William J. Wynn, Pelham, for appellees M. Lewis Gwaltney, Jr., Contemp Properties, Inc. and Realty Group & Associates, Inc.
   ALMON, Justice.

Plaintiffs below, purchasers of a home in Pelham, Alabama, filed suit claiming damages for alleged fraud and misrepresentation by defendants, who were the sellers, real estate brokers, and mortgagee of the home which plaintiffs bought.

The trial court granted motions to dismiss as to all defendants. We affirm.

The complaint was filed June 26, 1980. It alleged that the claimed fraud was discovered in May of 1979 which was more than one year prior to the filing of the complaint.

In brief, the appellants state that the date of the discovery of the alleged fraud was a typographical error, and that the court as well as the defendants’ counsel was orally apprised of this error.

This Court decides questions of law which are reflected in the record only. A trial judge will not be put in error on the basis of assertions of counsel which are unsupported in the official record.

AFFIRMED.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ. concur.

ON REHEARING

PER CURIAM.

REHEARING DENIED. Chief Justice Torbert withdraws his specially concurring opinion issued on original deliverance July 31, 1981, and concurs in the judgment and opinion of the Court issued that day.

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


author: PER CURIAM. TORBERT, Chief Justice

text:
    John T. ROACH, Jr. and The Legal Center, Inc., a corporation v. Frank K. BYNUM and James D. Forstman, individually and as majority stockholders of The Legal Center, Inc., a corporation.
    78-765.
    Supreme Court of Alabama.
    Aug. 7, 1981.

      William H. Mills of Redden, Mills & Clark, Birmingham, for appellants.
    Hobart A. McWhorter, Jr. and Robert K. Spotswood of Bradley, Arant, Rose & White, Birmingham, for appellees.
   PER CURIAM.

This is an appeal from John Roach, Jr., from an order granting the dissolution of a corporation, appointing a receiver, and denying a counterclaim. We affirm in part, and reverse in part.

The Legal Center, Inc., was formed in 1968 by Roach, his wife and Hjalma Johnson, the three of whom were Legal’s only shareholders and directors. In the interim between 1968 and 1975, during which time the corporation remained dormant, Roach’s wife and Johnson surrendered their holdings and resigned their positions as directors, thus leaving Roach as the sole shareholder and director. On May 15,1975, Roach held a shareholder meeting and, as Legal’s sole shareholder, adopted new bylaws which provided, inter alia :

ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. The holders of 70 percent of the shares of stock issued and outstanding and entitled to vote, represented in person or by proxy, shall constitute a quorum at all meetings of the shareholders for the transaction of business. * * *
Section 2. If a quorum is present, the affirmative vote of 70 percent of the shares of stock represented at the meetings shall be the act of the shareholders unless the vote of a greater number of shares is required by law. * * *
if! JjS * * *
(e) Any amendment, alteration, modification or repeal of any provision of the Articles of Incorporation or By-laws of this Corporation must be approved by the affirmative vote of 70 percent of all the shareholders of the corporation.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 6. 70 percent of the directors shall constitute a quorum for the transaction of business unless the vote of a greater number of directors is required by law. The act of 70 percent of the directors present at any meeting at which a quorum is present shall be the act of the Board of Directors, unless the act of a greater number is required by statute. If a quorum shall not be present at any meeting of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
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ARTICLE IX OFFICERS
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THE PRESIDENT
Section 6. The President shall be the chief executive officer of the corporation, shall preside at all meetings of the shareholders and the Board of Directors, shall have general and active management of the business of the corporation and shall see that all resolutions of the Board of Directors made in accordance with these By-Laws are given due consideration.
Section 7. He shall execute bonds, notes, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board of Directors by their affirmative vote of 70 percent to some other officer or agent of the corporation.
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ARTICLE XII
AMENDMENTS
Section 1. These By-Laws may be altered, amended or repealed or new ByLaws adopted at any regular or special meeting of the shareholders at which a 70 percent quorum is present or represented, by the affirmative vote of 70 percent of all the stock of this corporation entitled to vote, provided notice of the proposed alteration, amendment or repeal be contained in the notice of such meeting.

During the same shareholder meeting in which these bylaws were adopted, Roach elected himself and James Forstman to serve as Legal’s directors. Upon conclusion of the shareholder meeting, a meeting of the board of directors was held during which Roach was elected to serve as President/Treasurer and Forstman was elected to serve as Vice President/Secretary. By resolution of the directors, the ownership of the corporation was then realigned so that Roach and Forstman each owned 500 shares of Legal’s stock. Roach was also “authorized and empowered to procure, at the expense of the corporation, all necessary services, insurance, commitments for loans and any and all other things necessary and incident to the construction of an office building to be located in Homewood, Alabama.”

Roach and Forstman then executed a shareholder agreement which obligated each of them to (1) vote for each other as Legal’s directors; (2) vote for Roach as President/Treasurer and Forstman as Vice President/Secretary; (3) require the other shareholders or directors to either rescind their vote or cause the corporation to purchase the dissenting shareholder’s stock in the event action was taken or authorized by a vote of less than fifty-one percent of the shareholders or directors; (4) provide one-half of the funds “necessary to meet all mortgage payments, tax payments, maintenance costs, insurance, and any and all expenses necessary and incidental to the construction, ownership, operation and maintenance of an office building; (5) sell his shares to Legal in the event that the shareholder failed or refused to pay one-half of the expenses; (6) offer his shares to Legal at an agreed upon price before offering to transfer his shares to any person other than the present stockholders; and (7) submit to arbitration any disagreement which might arise from the terms of the shareholder agreement.

Both Roach and Forstman contributed $14,000.00 towards the construction costs of a building in which they intended to maintain their separate law offices. After a site was purchased and bids from local contractors were submitted, it became apparent to the parties that the cost of constructing the building as planned exceeded the funds available. In an effort to reduce those costs, Roach offered to, and did, act as the general contractor for the project.

Prior to the completion of the building, a special shareholder meeting was held on September 24, 1975, during which Frank K. Bynum, another practicing attorney, was elected to serve as Legal’s third director. The directors then issued Bynum 500 shares of Legal stock and elected him to the position of Secretary. The issuance of stock to Bynum brought the total number of issued and outstanding Legal shares to 1500, with each of the stockholders owning one-third. Bynum contributed $14,000.00 toward the building fund and executed a shareholder agreement similar to that signed by Roach and Forstman except this agreement, signed by all three men, bound them to (1) vote for each other as directors; (2) vote for Roach as President/Treasurer, Forstman as Vice President, and Bynum as Secretary; (3) required the other shareholders or directors to either rescind their vote or cause the corporation to purchase the dissenting shareholder’s stock in the event action was taken or authorized by a vote of less than seventy percent of the shareholders or directors; and (4) provide one-third of the cost associated with the construction and maintenance of the building.

Soon after the building was completed and the three moved their law practices into the building, disagreements arose over their respective financial obligations to the corporation. Approximately one month after Forstman removed his law practice from the building, all three attended a shareholder meeting where, in keeping with the shareholder agreement, each was reelected to the position of director. Forst-man, however, refused to vote for Roach as President/Treasurer. During this meeting, Roach informed Bynum and Forstman that the par value of Legal’s stock could not be increased as Bynum requested because of an outstanding $40,100.00 note Roach signed on behalf of the corporation to himself for the services he rendered as general contractor for the building. The meeting adjourned, thus leaving Roach as the holdover President/Treasurer.

In April of 1976, Roach, with Forstman’s consent, leased to another attorney the office space Forstman had previously occupied. The rental charged on this lease was greater than that paid by Forstman during his occupancy.

At the annual meeting in March, 1977, Roach utilized the seventy percent vote requirement to successfully block several of Forstman’s and Bynum’s motions by casting his vote against the proposals. Forst-man’s nomination of Bynum and himself as Legal’s only directors as well as his nomination of Bynum as President/Treasurer and himself Vice President/Secretary also failed to receive Roach’s assenting vote. Once again, the meeting adjourned with Roach remaining as the holdover President.

On May 17, 1977, Bynum and Forstman sued for dissolution under Code 1975, § 10-2-204. Roach counterclaimed for specific performance of the shareholder agreement, a determination of Forstman and Bynum’s indebtedness to the corporation and, in the alternative, crossclaimed for a determination of the corporation’s indebtedness to him on the note. The trial judge, sitting without a jury, found the corporation hopelessly deadlocked, determined that Roach’s claim on the note was not well founded, ordered the corporation dissolved and appointed a receiver to liquidate Legal’s assets. The judge also ordered the rental paid by the attorney who leased Forstman’s office applied to Forstman’s “contributory obligations to the corporate entity.”

I

Roach contends the trial judge’s findings that the corporation was hopelessly deadlocked within the meaning of Code 1975, § 10-2-204 is unsupported by the evidence. Although not for those reasons advanced by Roach, we agree that Legal is not deadlocked.

All allegations of deadlock arise from the seventy percent quorum and vote requirement imposed by Articles IV, VI and XII of the bylaws. Assuming these bylaws are valid, they in effect require the presence of all the shareholders in order to constitute a quorum at shareholder meetings and, more importantly, that all shareholder action must be by unanimous consent. The same is required for director action at meetings of Legal’s directors.

As a general rule, bylaws of a corporation are valid if they are reasonable, proper objects of the corporation, and are consistent with the charter and statutory law governing the corporation. See 18 Am.Jur.2d, Corporations § 165 (1965); 18 C.J.S. Corporations § 189(1) (1940). The Alabama Business Corporation Act follows this rule by authorizing corporations to make and alter “all needful bylaws” “unless inconsistent with the nature, character or object of the corporation or unless such powers are expressly denied to the corporation by its charter.” Code 1975, § 10-2-160(6). Roach, at the time he was the sole shareholder and director of Legal, attempted to exercise this grant of authority by passing, inter alia, Article IV of the bylaws which imposed seventy percent quorum and vote requirements for shareholder action; Article V, § 3, and IX, § 6, which vested in the President the power and authority to manage the corporation; and Article XII which imposed a seventy percent quorum and vote requirement for shareholder action to alter, amend, repeal or adopt bylaws.

Roach contends that Legal is not deadlocked because he continues to manage the affairs of the corporation under the power and authority vested in him as President by Articles V, § 3, and IX, § 6, of the bylaws. We disagree. According to the Alabama Business Corporation Act, “[ejxcept as may otherwise be provided in the certificate of incorporation, the business and affairs of a corporation shall be managed by a board of directors.” Code 1975, § 10-2-50. Legal’s Articles of Incorporation, Article Eighth, § 4, provides that the business affairs of the corporation shall be under the management and control of Legal’s directors. Those bylaws which vest the authority to manage Legal’s affairs in the President conflict with both the Corporation Act and Legal’s Articles of Incorporation and are therefore void. However, in the light of the dissension among the directors, “control” in the sense of continuing management by the directors is made illusory by the seventy percent quorum and vote requirement for director action imposed by Article VI, § 6, of the bylaws. Although these circumstances appear to indicate a director deadlock, we think that the power to break this and any other deadlock is held by Legal’s shareholders.

At common law, the presence of a simple majority of shareholders entitled to vote on a matter constituted a quorum, and a majority vote of that quorum was all that was necessary to validly transact shareholder business. Benintendi v. Kenton Hotel, 294 N.Y. 112, 119, 60 N.E.2d 829, 831 (1945). Many states have modified this rule by enacting statutes which permit greater than majority quorum/vote requirements for shareholders and direction action. See e. g., Fla.Stat.Ann. §§ 607.094, —.121 (West); Ga.Code Ann. §§ 22-607(a), —707(a); Ill. Rev.Stat. Ch. 32, § 157.31; N.J.Stat.Ann. § 14A:5-9; N.Y.Bus.Corp.Law §§ 616(a)(2), 709(a)(2); Tenn.Code Ann. § 48-711.

The requirement of unanimity or high quorum/vote for shareholder and director action is one of the most effective methods of protecting the interests of the minority shareholders and preventing the majority from “squeezing out” the minority. F. O’Neal, Oppression of Minority Shareholders, § 8.08 (1975). In addition to giving the minority what is in effect a veto power over corporate decisions, unanimity or high vote requirements permit the shareholders in a close corporation to be “shareholders to the outside world but partners among themselves.” 1 F. O’Neal, Close Corporations, § 5.02, at 5-3 (2d ed. 1971).

The statutory language in many state corporations acts permits high vote requirements to be set out in either the certificate of incorporation or the bylaws. See, e. g., Fla.Stat.Ann. §§ 607.094(2), —.121 (West) (shareholder and director action); Ga.Code Ann. §§ 22-607(b), —707(b) (shareholder and director action; Tenn.Code Ann. § 48-808(4) (director action only). Other statutory language indicates that such requirements as to shareholder action are valid only if included in the charter or articles of incorporation. See, e. g., N.Y.Bus.Corp.Law § 616(a)(2) (McKinney); Tenn.Code Ann. § 48-711. On this point it has been noted:

In some states, the part of the corporation act which lists items for inclusion in the charter is couched in language that lends some support to an argument that matters authorized for coverage in optional charter clauses cannot be covered by a bylaw provision or in a shareholder agreement. Thus, the Maryland statute provides that the articles of incorporation “shall state — . . . (7) The restrictions, if any, imposed upon the transferability of shares of any class.” Statutory language of this kind could conceivably be interpreted to mean that share restrictions elsewhere would be ineffective.

1 F. O’Neal, Close Corporations, § 3.79, at 3-114 (2d ed. 1971) (footnote and citation omitted). Several decisions supporting this interpretation have established the general rule that when the corporations statute commands that a provision which governs shareholder rights be set out in the certificate of incorporation, but the provision is not so set out, a bylaw which purports to regulate the same subject is void. Model, Roland & Co. v. Industrial Acoustics Co., 16 N.Y.2d 703, 261 N.Y.S.2d 896, 209 N.E.2d 553 (1965); In re William Faehndrich, Inc., 2 N.Y.2d 468, 161 N.Y.S.2d 99, 141 N.E.2d 597 (1957); Benintendi v. Kenton Hotel, 294 N.Y. 112, 60 N.E.2d 829 (1945). See also, Paulek v. Isgar, 38 Colo.App. 29, 551 P.2d 213 (1976); State v. Anderson, 31 Ind.App. 34, 67 N.E. 207 (1903); Steiner & Lobman v. Land & Lumber Co., 120 Ala. 128, 26 So. 494 (1897).

The provisions of the Alabama Business Corporation Act in effect both at the time when Legal was formed and when this action was commenced provided :

§ 10-2-23. Certificate of incorporation —Signatures; contents.
The certificate of incorporation . . . shall set forth:
******
(11) VOTING—The certificate of incorporation may contain provisions requiring for any corporate act the vote of a larger proportion of the stock or any class thereof than is required by this chapter.

We think this language is susceptible of the same interpretation other courts have given similarly worded statutes. A provision mandating a greater than majority shareholder vote is valid only if set forth in the certificate of incorporation, and a bylaw which purports to impose the same requirement is void.

Legal’s certificate of incorporation is silent as to the number of votes necessary to transact shareholder business. The record is devoid of any evidence of an amendment to the certificate which addressed this issue. We therefore conclude that, at the time of its “passage,” the bylaw which mandated shareholder vote of seventy percent was void and, unless the Corporation Act imposes a different requirement, a simple majority vote of the quorum present at a shareholder meeting was all that was necessary to validly transact shareholder business. This conclusion equally applies to those bylaws which require a seventy percent shareholder vote to alter, amend or repeal existing bylaws or to adopt new bylaws. We hasten to point out that our decision here is under the old Corporation Act and in no case should be construed as an interpretation of any of the provisions of the new Corporation Act. While the new Act applies to some extent to all existing corporations, Code 1975, § 10-2A-334, it cannot operate to breathe life into a bylaw which, at the time of its passage, was void. Code 1975, § 10-2A-339.

Our resolution of these issues compels us to conclude that the corporation is not deadlocked. Any one of the shareholders may call a special shareholders meeting during which they may, by a simple majority of the quorum, exercise their right under Article Eighth of the Articles of Incorporation to vote to alter, amend or repeal any existing bylaw they find oppressive or burdensome . In sum, the shareholders themselves hold the power to break any deadlock which may have arisen from Legal’s existing bylaws. Therefore, the trial judge’s order dissolving the corporation and appointing a receiver to liquidate Legal’s assets is due to be reversed.

II

Roach argues that he is entitled to recover on his counterclaim on the $40,100.00 note, and that the trial judge erred when he denied this claim. In support of his position, Roach refers to the rule and exception stated in Navco Hardwood Co. v. Bass, 214 Ala. 553, 108 So. 452 (1925):

The general rule is that corporate offices (as president and directors, trustees for stockholders) are usually filled by the chief promoters of the corporation, whose interest in the stock or in other incidental advantages is supposed to be a motive for the execution of the duties of his office without compensation, and that this presumption prevails until overcome by an express prearrangement of salary. Kilpatrick v. Penrose Ferry Bridge Co., 49 Pa. 118, 88 Am.Dec. 497; 14 A. C.J. p. 136, § 1906. This is a statement of the rule as to the compensation of corporate offices generally (representing the stockholders), but this general rule has no application to an officer who is the acting superintendent or general manager of the corporation’s business, and who devotes practically his entire time to the business affairs of the corporation. 7 R. C. L. §§ 445, 446. The rule to be “deduced from the modern and best-considered cases seems to be that a person, although a director or other officer of a corporation, may recover the reasonable value of necessary services rendered to a corporation, entirely outside of the line and scope of his duties as such director or officer, performed at the instance of its officers, whose powers are of a general character, upon an implied promise to pay for such services, when they were rendered under such circumstances as to raise a fair presumption that the parties intended and understood they were to be paid for, or ought to have so intended and understood. * * * And it has been held that the general manager of a corporation, who is also a director, has a legal claim for the value of his services, although there has been no resolution of the board of directors or any express contract fixing his compensation, where he devotes his entire time to the business, and his duties are numerous and onerous and not such as pertain to his office as director.” Bassett v. Fairchild, 132 Cal. 637, 64 P. 1082, 52 L.R.A. 611; 7 R. C. L. 464, 465. This follows from that other well-established rule, that the implied powers of a general executive officer of a corporation, as its general manager, are coextensive with the general scope of the .business of the corporation.

Roach maintains that his claim falls within this exception to the general rule. We disagree. A “fair presumption that the parties intended and understood [the services] were to be paid for, or ought to have so intended and understood” does not arise in this case. First of all, neither Forstman nor Bynum requested Roach to act as general contractor. Second, and more importantly, the facts are clear that the costs of constructing the building as planned exceeded the funds available and that Roach acted as general contractor in order to cut those costs. These facts do not indicate that the parties intended to pay for Roach’s services. If Roach did not intend to immediately recover for these services, but instead intended to be compensated only in the event the corporation was dissolved, he should have secured an express agreement to that effect. Otherwise, a presumption of compensation will not obtain in this circumstance.

Ill

Also by way of a counterclaim, Roach sought specific enforcement of clause 5(a)(1) of the shareholder agreement. That clause provides:

The undersigned individual parties hereto agree that each party, individually, shall provide Thirty Three and One Third (33!/3%) per cent of the funds, in the legal tender of the United States, necessary to meet all mortgage payments, tax payments, maintenance costs, insurance, and any and all expenses necessary and incidental to the construction, ownership, operation and maintenance of an office building to be constructed on property presently held by LEGAL located in Homewood, Jefferson County, Alabama. Should either of the individual parties hereto fail or refuse to pay his Thirty Three and One Third (33x/3%) of any of the before stated costs or expenses within Ninety (90) days of written notice that said costs or expenses are due or payable then the individual party thereto who fails or refuses to make said payments or provide funds for said purposes shall immediately cause LEGAL to purchase the shares owned by said individual party hereto at a price hereinafter provided in sub-paragraph 5.(d) hereof, as revised from time to time as therein provided. * * *

Roach contends that neither Bynum nor Forstman met his financial obligations under this clause and that the trial judge erred when he failed to grant Roach’s requested relief of specific performance, i. e., compelling them to sell their stock to Legal. We disagree.

Even though Forstman and Bynum may not have met all of their financial obligations under the shareholder agreement — a fact which we need not determine — we think that there is ample evidence from which one could conclude that Roach has also failed to meet his financial obligations. At trial Roach introduced as exhibits balance sheets which showed the balance due from each shareholder. The balance sheet for both Forstman and Bynum indicate a balance due. Roach’s balance sheet, however, indicates a credit. Although it appears from these exhibits that Roach correctly asserts that he has met his obligations and that Bynum and Forstman have not, a closer inspection of Roach’s balance sheet shows that his account has been credited with interest due from the corporation on the $40,100.00 note. Roach himself admitted at trial that but for the credit of this interest he would be indebted to Legal. Given that the $40,100.00 note to Roach is invalid, and the trial court has determined that it is invalid, it follows that Roach is not entitled to have interest on that note credited to his account. Therefore, Roach is indebted to Legal and, under such circumstances ought not to be permitted to seek against Forstman and Bynum specific performance of a contractual provision which they could equally enforce against him.

IV

Finally, Roach contends the trial judge erred by ordering the rental paid by the attorney who leased Forstman’s office applied to Forstman’s “contributory obligations to the corporate entity.” Without elaborating upon our reasoning, we find no error in the trial judge’s disposition of this issue.

For the foregoing reasons the judgment on the claim for specific performance, and on the note and rental payment credit is due to be affirmed, and the order dissolving the corporation and appointing a receiver to liquidate Legal’s assets is due to be reversed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

MADDOX, JONES, ALMON, SHORES and ADAMS, JJ., concur.

TORBERT, C. J., and BEATTY, J., concur specially.

FAULKNER and EMBRY, JJ., recuse themselves.

TORBERT, Chief Justice

(concurring specially).

I agree that the by-laws requiring the vote of 70% of the issued and outstanding stock to take corporate action is void under Alabama law. That is not to say that the same result would follow if such a requirement was provided in an otherwise valid agreement among all of the stockholders. The stockholders’ agreement here does not provide for such a high vote requirement. Paragraph 5(a) of the stockholders’ agreement only provides for certain alternatives “if any action be taken or authorized at a meeting ... by a vote of less than seventy (70%) percent,” namely, rescission of the action or the purchase by the corporation of the stock owned by the dissenter.

At the meetings in question, no corporate action was taken by a vote of less than 70%. Additionally, Roach in his counterclaim sought to specifically enforce Paragraph 5(a)(1) of the stockholders’ agreement pertaining to the financial obligations of each stockholder.

The validity or enforceability of the provisions of Paragraph 5(a) of the stockholders’ agreement is not an issue before this Court.

BEATTY, J., concurs.

      . These included proposals (1) that court reporter or someone capable of taking shorthand be allowed to transcribe the business conducted at the meetings; (2) that the bylaws be changed; and (3) that a restriction be placed upon the President/Treasurer’s authority to borrow and lend money on behalf of the corporation.

      .Repealed by Acts 1980, No. 80-633, § 192, effective January 1, 1981, and replaced by Code 1975, § 10—2A—195.
      In addition to the claim of deadlock, the plaintiffs alleged oppressive conduct on Roach’s part. The trial judge did not expressly find oppressive conduct. Therefore, due to our finding that the corporation is not deadlocked, we need not address the allegations of oppressive conduct.

      . Repealed by Acts 1980, No. 80-633, § 192, effective January 1, 1981. The statute which replaces § 10-2-160(6) authorizes corporations “[t]o make and alter bylaws, not inconsistent with the laws of this state, for the administration and regulation of the affairs of the corporation.” Code 1975, § 10-2A-20(12).

      . Repealed by Acts 1980, No. 80-633, § 192, effective January 1, 1981, and replaced by Code 1975, § 10-2A-57, which contains a similar provision.

      . At the time Legal was incorporated, the provisions of Tit. 10, § 21(1), et seq., were in effect. Code 1975, § 10-2-1, et seq., which replaced those applicable provisions of Tit. 10, § 21, was repealed by Acts 1980, No. 80-633, § 192, effective January 1, 1981. The provisions for greater than majority quorum/vote requirements are presently embodied in Code 1975, §§ 10-2A-52 and 10-2A-54.

      . Although the power to alter bylaws is typically vested in the board of directors, such power may be reserved to the shareholders if so provided in the certificate of incorporation. Code 1975, § 10-2-161, repealed by Acts 1980, No. 80-633, § 192, effective January 1, 1981, and replaced by Code 1975, § 10-2A-45. Article Eighth of Legal’s Articles of Incorporation reserves to the shareholders the power to make, alter, amend and repeal bylaws.


author: FAULKNER, Justice. TORBERT, Chief Justice

text:
    Elizabeth Anne FREEMAN v. Otis F. WARREN and Martha Warren.
    80-229.
    Supreme Court of Alabama.
    Aug. 7, 1981.
    George A. Monk of Merrill, Porch, Doster & Dillon, Anniston, for appellant.
    James M. Campbell, Anniston, for appel-lees.
   FAULKNER, Justice.

This is an appeal from a judgment in the Circuit Court of Calhoun County granting the plaintiffs’ motion for new trial.

On September 17, 1979, plaintiff Otis Warren and defendant Elizabeth Freeman were involved in a two-car wreck in Anni-ston, Alabama. The accident occurred in front of a bank where both parties had transacted business immediately prior to the collision. Otis Warren had pulled out from his parking space along the curb in front of the bank and was entering the street traffic. Elizabeth Freeman was pulling out from a drive-in window. Mrs. Freeman testified that she stopped twice and looked both ways before entering the street. Both parties testified that they did not see the other until impact. There were no other witnesses. The evidence is in conflict as to whether Mr. Warren stated, immediately after the accident, that he was looking over his left shoulder at the time of the accident. Mrs. Freeman testified that Mr. Warren made the statement; Mr. Warren testified that he couldn’t recall the statement. There were no other witnesses.

The Warrens filed suit against Mrs. Freeman. The case went to trial and the jury returned a verdict for Mrs. Freeman. Subsequently, the trial court granted the Warrens’ motion for new trial upon a finding that the jury’s verdict was contrary to the great preponderance of the evidence. Mrs. Freeman appeals.

The sole issue presented for our review is whether the trial court erred in granting the new trial. We find no error.

The law in this jurisdiction is well settled that

granting or refusing a motion for new trial is a matter resting largely in the discretion of the trial court, and the exercise of this discretion carries with it a presumption of correctness. . . . Furthermore, on appeal from an order granting a new trial, the record must be construed against the appellant.... Therefore, an order granting a new trial will not be disturbed on appeal unless some legal right was abused and the record plainly and palpably shows that the trial court was in error.... It has been said that an appellate court is even more reluctant to reverse an order granting a new trial than one denying a new trial.

Johnson v. Hodge, 291 Ala. 142, 279 So.2d 123 (1973) (citations omitted).

We further stated in Parker v. McGaha, 291 Ala. 339, 280 So.2d 769 (1973): “[I]t has long been held that upon an appeal from the granting of a motion for new trial, based upon the fact that the verdict was contrary to the evidence, there is a presumption in favor of the trial court when there is a conflict in the evidence.”

After careful consideration of the record in view of the foregoing authority, we conclude that the trial judge was not plainly and palpably wrong in granting the new trial.

The judgment of the trial court is due to be affirmed.

AFFIRMED.

ALMON, EMBRY and ADAMS, JJ., concur.

TORBERT, C. J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

I agree with the result reached by the majority, and concur specially for the purpose of calling attention to my dissent in Shiloh Const. Co. v. Mercury Const. Corp., 392 So.2d 809 (Ala. 1980). In both Shiloh Const. and the present case, there was conflicting evidence which, in my opinion, supported the trial court’s granting of a new trial. I viewed the facts and circumstances in Shiloh Const. the same way the majority has viewed the present situation.


text:
    OPINION OF THE JUSTICES.
    No. 278.
    Supreme Court of Alabama.
    Aug. 13, 1981.
   To the Honorable Speaker and Members of The House of Representatives

State Capitol

Montgomery, Alabama

Dear Ladies and Gentlemen:

We are in receipt of House Resolution 14 requesting an advisory opinion of the Justices of the Supreme Court relating to House Bill 75, which provides:

BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE LEGISLATURE OF ALABAMA, That we respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court or a majority of them, to give this body their written opinions on the following important constitutional question which has arisen concerning the pending H. B. 75 of the 1981 Special Session, copies of which are attached to this resolution and made a part hereof by reference:
1. Does Section 1 of H. B. 75 violate the constitutionally protected right to equal protection and equal treatment under the law? (I.e., this bill will deprive candidates for re-election [of] certain rights and privileges held by first-time candidates for the same office.)
2. Does the limitation on the right to make campaign contributions abridge a citizen’s right to freedom of expression under Section 4 of the Alabama Constitution and the First Amendment to the U. S. Constitution? (See Buckley vs. Valeo, 424 U. S. 1, 96 S.Ct. 612 [46 L.Ed.2d 659].)
RESOLVED FURTHER, That the Clerk of the House is hereby directed to send sufficient true copies of the pending H. B. 75 to the Clerk of the Supreme Court of Alabama and to transmit this request to the Justices of the Supreme Court forthwith upon adoption of this resolution.

The copy of House Bill No. 75, forwarded with the resolution reads:

SYNOPSIS: This bill is based upon the wording and language of Advisory Opinion No. 482 of the State Ethics Commission and prohibits campaign contributions to elected public officials who are running for re-election except during the 90 day period immediately preceding an election at which such official is seeking re-election.
A BILL TO BE ENTITLED AN ACT
To amend Section 36-25-6, Code of Alabama 1975, which relates to public officials receiving gifts, favors or things of value, so as to provide that no person shall make or give any campaign contribution to any elected public official except during the 90 day period immediately preceding an election at which the elected public official is seeking re-election.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. Section 36-25-6, Code of Alabama 1975, is hereby amended to read as follows:
“§ 36-25-6.
“No person shall offer to or give to a public official or employee or his family, and none of the aforenamed shall solicit or receive anything of value, including a gift, favor or service or a promise of future employment, based on any understanding that the vote, official actions, decisions or judgment of the intended recipient or family member would be influenced thereby. Expenses associated with social occasions afforded public officials and employees shall not be deemed a thing of value within the meaning of this section or prohibited hereby.
“No person shall make or give, or offer or promise to make or give, any campaign contribution of any kind whatsoever, to any elected public official. This prohibition shall include, but not be limited to, any judge, constitutional officer, city councilman or city commissioner, county commissioner, probate judge, sheriff, tax assessor, tax collector or elected education official. This prohibition shall not apply to the 90 day period immediately preceding an election at which the elected public official is seeking reelection.”
Section 2. This Act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.

We perceive that Code 1975, § 36-25-6, as amended by House Bill 75, would be violative of both the United States and Alabama Constitutions. The United States Constitution in the Fourteenth Amendment and the Alabama Constitution in Article 1, §§ 1, 6 and 22, guarantees equal protection under the laws. The United States Supreme Court in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), stated that absent record evidence of invidious discrimination, a court should generally uphold legislation which on its face imposes evenhanded restrictions. However, the amendment to § 36—25-6 as proposed by House Bill 75 is discriminatory on its face. The restrictions apply to elected public officials only and hence denies them the rights to receive contributions that are afforded other candidates for office. As such it denies elected public officials equal protection under the law.

As a result of our opinion relating to question one of House Resolution 14, we do not reach question two therein.

Respectfully submitted,

C. C. Torbert, Jr.

Chief Justice

James H. Faulkner

Reneau P. Almon

Janie L. Shores

T. Eric Embry

Sam A. Beatty

Justices


author: BEATTY, Justice.

text:
    Nick J. SPINA, Marion P. Spina, Rose M. Spina & Ruth L. Spina v. J. F. CAUSEY. J. F. CAUSEY v. Nick J. SPINA, Marion P. Spina, Rose M. Spina & Ruth L. Spina.
    79-877, 79-896.
    Supreme Court of Alabama.
    Aug. 21, 1981.

      James W. May of Odom, May & De Buys, Birmingham, for appellants in 79-877, for cross-appellees in 79-896.
    John W. Roach, Jr., Birmingham, for ap-pellee in 79-877, for cross-appellant in 79-896.
   BEATTY, Justice.

Defendants appeal from a jury verdict for the plaintiff for $20,000.00, followed by plaintiff’s filing a cross-appeal and a motion to dismiss the appeal. The ease was heard by this Court on the motion and the merits. We grant the motion to dismiss, due to untimely filing of the notice of appeal under Rule 4(a)(3), ARAP, and Rule 59.1, ARCP.

Plaintiff Causey purchased from defendants Spina a 70-year-old warehouse building in Birmingham for $107,800.00 on November 19, 1976. Certain warranties in the contract, but not contained in the deed, precipitated suit some two years later by the plaintiff against defendants for breach of warrant. Plaintiff also alleged misrepresentations by defendants made mistakenly, innocently, recklessly or willfully by the defendants to plaintiff in the sale of the building. The trial court directed a verdict for the defendants on the issue of fraud and misrepresentation, and on December 14, 1979, the jury returned a verdict in favor of the plaintiff for $20,000.00 on the breach of warranty claim. The defendants filed a motion for judgment notwithstanding the verdict on January 4, 1980. On January 9, 1980, the defendants filed a motion for new trial. These two motions were set on the trial court’s docket, continued twice, and argued on March 7, 1980. The trial court did not rule on the motions within 90 days, nor did the parties expressly consent to the court’s carrying the motions over beyond the 90 days (as provided by Rule 59.1), and 90 days elapsed from the filing of the post-trial motions. On May 27, 1980, defendants filed a Rule 60(b), ARCP motion, citing excusable neglect on their part as grounds for relief from the Rule 59.1 denial of the post-trial motions. The trial court granted the 60(b) motion on July 8, 1980, while denying both post-trial motions. On August 19, 1980, defendants filed an appeal from the jury verdict. On August 29, 1980, plaintiffs filed a cross-appeal from the directed verdict. Finally, on October 15, 1980, plaintiffs filed a motion to dismiss the appeal as untimely.

To recapitulate the pertinent facts and dates, the following timetable is helpful:

December 14, 1979 — Final judgment
January 4, 1980 — Defendant files motion for judgment notwithstanding the verdict
January 9, 1980 — Defendant files motion for new trial
March 7, 1980 — Motions argued
April 3, 1980 — Expiration of 90-day period for Rule 50 motion
April 8, 1980 — Expiration of 90-day period for Rule 59 motion
May 20, 1980 — Expiration of 42-day period under Rule 4
May 27, 1980 — Defendant files Rule 60(b) ARCP motion directed to Rule 59.1, ARCP denial of post-trial motions
July 8, 1980 — Court denies Rule 50 and Rule 59 motions. Court grants Rule 60(b) motion
August 19, 1980 — Defendant files notice of appeal.

Based on these facts, we have no alternative but to grant the motion to dismiss the appeal for lack of jurisdiction. The rules of procedure, as well as case law, clearly support this decision.

Timely filing of an appeal is jurisdictional and “[a]n appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.” Rule 2(a)(1), ARAP. Under the rules, the time for taking an appeal from a final judgment is forty-two days after that judgment is entered. The filing of post-trial motions may suspend the time for taking an appeal, but with the express limitations and requirements of Rule 59.1, ARCP and Rule 4, ARAP.

Rule 59.1, ARCP, was enacted to “remedy any inequities arising from failure of the trial court to dispose of post-trial motions for unduly long periods.” Committee Comments, Rule 59.1, ARCP. This Court interpreted this rule in Coosa Marble Co., Inc. v. Whetstone, 294 Ala. 408, 318 So.2d 271 (1975), as follows:

Under Rule 59.1, a motion for new trial shall not remain pending in the trial court for more than 90 days, without the express consent of all the parties, or unless extended by the appellate court to which an appeal of the judgment lies. A failure of the trial court to dispose of the motion within the 90 days constitutes its denial on the expiration of that period. . . .

Here, the latter of the two post-trial motions was filed on January 9, 1980; therefore, the last day for the trial judge to grant or deny the motion was April 8, 1980. The judge did not act on either motion in the prescribed time limit; therefore, both motions are deemed denied by operation of law.

The denial of the post-trial motions under 59.1 has a clear effect on the time for taking an appeal, which is set out in Rule 4(a)(3), ARAP, as follows:

(3) The filing of a post-trial motion pursuant to Rules 50, 52 and 59 of the Alabama Rules of Civil Procedure (ARCP) shall suspend the running of the time for filing a notice of appeal. In cases where post-trial motions are filed, the full time fixed for filing a notice of appeal shall be computed from the date of the entry in the civil docket of an order granting or denying such motion. If such post-trial motion is deemed denied because of its pendency in the trial court for more than 90 days, as provided in Rule 59.1 of the Alabama Rules of Civil Procedure, then the time for filing a notice of appeal shall be computed from the date of denial of such motion by operation of law, as provided for in Rule 59.1.

In this case, the last day for filing a timely appeal from the final judgment would have been May 20, 1980. The filing of an appeal some eight months after the final judgment and some three months after the expiration of the prescribed time limit is clearly untimely and fails for lack of jurisdiction. See Harrison v. Alabama Power Company, Ala., 371 So.2d 19 (1979).

The timeliness of filing the notice of appeal is a jurisdictional act, Thompson v. Keith, Ala., 365 So.2d 971 (1978); see Holmes v. Powell, Ala., 363 So.2d 760 (1978); Morris v. Merchants National Bank, Ala., 359 So.2d 371 (1978); therefore, the August 19, 1980 filing of the appeal leaves us without jurisdiction to review. Holmes v. Powell, supra. That being the case, we need not address other issues raised.

The motion to dismiss the appeal is granted; the cross-appeal is likewise due to be dismissed.

APPEALS DISMISSED.

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


author: SHORES, Justice.

text:
    STERLING DISTRIBUTORS, INC. v. INTERMODAL TRANSPORTATION SYSTEMS, INC. Terry P. CRUMPTON, v. INTERMODAL TRANSPORTATION SYSTEMS, INC.
    80-87, 80-331.
    Supreme Court of Alabama.
    Aug. 21, 1981.
    Andrew P. Campbell of Leitman, Siegal & Payne, Birmingham, for appellant Sterling Distributors, Inc.
    James M. Sizemore, Jr. of Sizemore & Rea, Sylacauga, for appellant Terry P. Crumpton.
    Carl E. Johnson, Jr. of Bishop, Colvin & Johnson, Birmingham, for appellee.
   SHORES, Justice.

Intermodal Transportation Systems, Inc., sued Sterling Distributors, Inc., and Terry Crumpton to recover amounts claimed due on a written lease. The trial court sitting without a jury, entered judgments against Sterling for $13,023.66 and against Crump-ton for $14,586.46. Both defendants appealed, and the cases were consolidated in this Court.

We affirm the judgment against Crump-ton and reverse the judgment against Sterling.

With one exception, the facts material to this appeal are basically undisputed. In early 1976, an agreement existed between Terry Crumpton and The Pabst Brewing Company whereby Crumpton was to haul for Pabst’s benefit tin plate to Pabst’s offices in Perry, Georgia, for manufacture of beer cans and to haul beer from Georgia to various distributors in Alabama, including Sterling. Crumpton determined in February, 1976, that he needed highway trailers to use in his business operations with Pabst.

As a result, an oral agreement ensued on February 27, 1976, between Crumpton and David Toney, regional branch manager of Intermodal, for Crumpton’s lease of several trailers for his business operations. Following the oral agreement, Toney delivered three trailers to Crumpton. A written lease agreement was entered into between Crumpton and Intermodal on March 10, 1976. At this time, Intermodal delivered three additional trailers to Crumpton.

Prior to his February 27, 1976, agreement on behalf of Intermodal to lease trailers to Crumpton, Toney determined that Crump-ton’s credit was unsatisfactory. At Crump-ton’s suggestion, Toney telephoned Chris Mitchell, president of Sterling, to ascertain whether Sterling would guarantee Crump-ton’s obligations under a trailer lease. At trial, Toney testified that Mitchell, on February 27, 1976, verbally agreed over the telephone that Sterling would guarantee all of Crumpton’s obligations under a written lease with Intermodal. In contrast, Mitchell testified under oath that he did not offer an unconditional guarantee of all of Crump-ton’s obligations under a potential lease with Intermodal and had never given an unconditional guarantee to anyone during his thirty years of operating Sterling.

Instead, Mitchell testified that he represented to Toney that Sterling would guarantee payment of rent under the lease as long as Crumpton’s Pabst contract was in effect, provided that Intermodal notify Sterling within ten days after the occurrence of any rental arrearages. He further testified that Toney agreed to these conditions.

On March 1, 1976, Mitchell, consistent with his testimony above, forwarded to To-ney a written conditional guarantee containing the ten-day notice requirement. In-termodal refused to accept the conditional guarantee and tendered the company’s form guaranty agreement to Mitchell, providing for an unconditional guarantee of all of Crumpton’s obligations. Mitchell, through his attorneys, refused to execute the unconditional guarantee, and negotiations continued until April 27, 1976, when Mitchell, as president of Sterling, submitted a written conditional guarantee to Intermo-dal. This guarantee agreement, dated April 27,1976, was accepted by Intermodal.

The guaranty agreement provided as follows:

In consideration of Intermodal Transportation Systems, Inc. executing and entering into the annexed agreement dated the 12th day of April, 1976, with Terry Crumpton, P. 0. Box 448, Childersburg, Alabama 35044, hereinafter called “Lessee,” the undersigned hereby guarantees that if Terry Crumpton defaults in the payment of the rent due from him on unit numbers 245255, 245296, 245301, 245258, 245237, 245291 to Intermodal Transportation Systems, Inc., and Inter-modal gives Sterling notice within 10 days thereafter, then Sterling will pay direct to Intermodal the rental arrearage, so long as Mr. Crumpton continues his present lease arrangement with Pabst Brewing Company.

The trial court found:

2. That Sterling Distributors, Inc. is indebted to Intermodal Transportation Systems, Inc. as a guarantor of the debts of Terry Crumpton pursuant to the terms of an oral, conditional guarantor agreement of February 27, 1976, which was merged into a subsequent written agreement dated April 27, 1976, so as not to be void under the Statute of Frauds, in the amount of Thirteen Thousand Twenty-three and 66/100 ($13,023.66) computed as follows:
Repairs and parts $ 8,454.87
Lost revenue (Oct. & Nov.) 1,944.00
Attorney fees 2,624.79
$14,023.66
Less: Check $1,000 (1,000.00)
Total $13,023.66
Absent the oral, unconditional guarantor agreement of February 27, 1976, which the Court has found merged into the written, conditional agreement of April 27, 1976, Sterling Distributors, Inc. would not be indebted to Intermodal Transportation Systems, Inc. except to the extent of the lost revenue for October and November, 1976 in the amount of $1,944.00, for which the Court finds that Sterling Distributors, Inc. would be liable under the terms of the written agreement of April 27, 1976.

It is undisputed that Crumpton defaulted on the rental payments on or before March 26 and thereafter. He finally returned the trailers to Intermodal in September or October. According to Intermodal, they were damaged. Sterling was first notified that Crumpton was in default in October, 1976. Sterling refused to pay all amounts of which it was not notified within the ten-day period specified in the written guaranty agreement. It did pay $1,347.00, that being the only arrearage of which it had notice within ten days of the default.

Sterling argues vigorously that the trial court incorrectly held that the statute of frauds did not render the alleged oral agreement void. We tend to agree, but need not decide the case on that issue, because we hold that the oral agreement, if there was one, and all prior negotiations between Intermodal and Sterling, as a matter of law, were merged into and incorporated in the final written guaranty agreement of April 27, 1976. This principle of law has been variously stated in a number of cases. In League v. Giffin, 347 So.2d 1332 (Ala.1977), Justice Maddox, speaking for the Court, stated it as follows:

Even though Giffin may have had an oral agreement with League concerning his participation in the project, it is a basic principle of contract law that this agreement as well as all prior negotiations merged into the written contract between the parties. See Blake v. Coates, 292 Ala. 351, 294 So.2d 433 (1974); McGuffey’s Nursing Home, Inc. v. Taylor, 45 Ala.App. 634, 235 So.2d 885 (1970); 5 Ala.Dig., Contracts, Key # 245(2).

347 So.2d at 1333.

The rule was also restated in Hibbett Sporting Goods v. Biernbaum, 375 So.2d 431 (Ala.1979).

The agreement of April 27,1976, is unambiguous, and there is no suggestion that it was the product of fraud on either side. It, therefore, constitutes the only agreement which the law recognizes between Sterling and Intermodal. Thus, the trial court erred in enforcing an alleged prior oral agreement which differed frpm the written one. The written agreement obligates Sterling to pay rent due from Crumpton only where Sterling is notified of the fact of arrearage within ten days of its occurrence. Sterling has paid that amount. The judgment against it is reversed.

The judgment against Crumpton is affirmed. He argues that the trial court erred in holding him individually liable. He asserts that he signed the lease in a representative capacity only and that Crumpton Transports, Inc., was the true lessee. The evidence was undisputed that all negotiations between Intermodal and Crumpton were with Crumpton individually. There was no discussion of a corporation. The credit check which led to the demand for Sterling’s guaranty was made on Crumpton as an individual.

The lease form listed the lessor and lessee as follows:

LESSOR: Intermodal Transportation Systems, Inc.
By: /s/ Michael J. Dennehy, Jr.
LESSEE: Crumpton Transport
P. O. Box 448
Childersburg, Ala. 35044
By: /s/ Terry P. Crumpton

Suffice it to say, there was evidence before the trial judge which supports his finding that Crumpton doing business as Crumpton Transport was the true lessee, rendering him individually liable.

The judgment against Sterling is reversed, and the cause is remanded. The judgment against Crumpton is affirmed.

CASE NO. 80-87 REVERSED AND REMANDED.

CASE NO. 80-331 AFFIRMED.

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

      . We recognize that there appears to be an error in the calculations in the trial court’s findings. No issue has been made of this on this appeal.


text:
    John L. COMER v. Bennie Reynolds RUSH.
    80-209.
    Supreme Court of Alabama.
    Aug. 21, 1981.
    George E. Trawick, Ariton, for appellant.
    Boyd Whigham, Clayton, for appellee.
   BEATTY, Justice.

This is an appeal from a judgment entered upon a jury verdict in favor of the plaintiff in a suit over title to a tract of land. Each party claimed title to a strip of woodland located between their farms, the plaintiff claiming title by deed and the defendant claiming title by adverse possession. The defendant attacks the judgment by raising two issues, viz.: (1) whether he was denied due process of law by the trial court’s invasion of the jury’s deliberations; and (2) whether he was denied due process of law by the trial court’s alleged disparagement of defenses in the presence of the jury. We answer “No” to each issue and affirm the judgment.

The first issue springs from the manner in which the jury’s verdict was received. The trial had continued on the preceding day until 6:40 p.m. at which time court was adjourned. At 9:00 a.m. the next morning the jury was allowed to view the land. They returned to the courthouse at 11:32 a.m., heard closing arguments, were instructed and given the case, and (with time allowed for a noon meal) began their deliberations.

When at 4:07 p.m. that afternoon the jury advised that they had reached a verdict, another case was being tried in the courtroom itself, presided over by the same trial judge who had presided over the instant case. The case being tried was recessed, and the verdict in question was received in the jury room, with the trial court, the parties, and their attorneys being present. We quote from the record the recital of what transpired:

THE COURT: Now, before I even know what the verdict is — Of course, the verdict has to be unanimous: everybody has to agree. Now, let me ask you, not why you voted this way or anything else, is this your verdict. If it is, just say so.
Now, let me start here. Is this your verdict?
JUROR: Yes.
THE COURT: Is this your verdict?
JUROR: (Nods head up and down.)
THE COURT: Your verdict?
JUROR: Yes.
THE COURT: Your verdict?
JUROR: I guess so. I’m not exactly—
MR. TRAWICK: We move for a mistrial on that, Judge.
THE COURT: Well, let’s get past her and I’ll come back to her.
Is this your verdict?
JUROR: Yes.
THE COURT: Your verdict?
JUROR: (Nods head up and down.)
THE COURT: Your verdict?
JUROR: (Nods head up and down.)
THE COURT: Your verdict?
JUROR: (Nods head up and down.)
THE COURT: Your verdict?
JUROR: (Nods head up and down.)
THE COURT: Your verdict?
JUROR: Uh-huh.
THE COURT: Your verdict?
JUROR: (Nods head up and down.)
THE COURT: Your verdict?
JUROR: (Nods head up and down.)
THE COURT: All right. Now, then, let me get back to this. Is this your verdict?
JUROR: I guess so.
THE COURT: Well, not guess so. Is—
JUROR: Yeah, it’s my verdict.
THE COURT: There was no coercion?
JUROR: Huh-uh.
THE COURT: Well, all verdicts are the result of talking back and forth. Now, I don’t know whether I told you that or not but that is the purpose of deliberations. If there is no coercion, of course, you have a right to make your own mind up. You were not forced by anybody to—
JUROR: Uh-huh.
THE COURT: If you were not forced by anybody, then, of course, I’ll accept it as your verdict. Now, this is your verdict?
JUROR: (Nods head up and down.)
THE COURT: All right, it is your verdict. Now, I don’t even know what the verdict is. Where is your verdict?
(Verdict handed to the Court.)
THE COURT: Let the record show that each one stated that it was their verdict and the verdict is, “We, the jury, find for the plaintiff, Mrs. Bennie Reynolds Rush, and against the defendant, John L. Comer, and fix the true line between them as the section line between sections 28 and 29, as shown by Plaintiff’s Exhibit 1.”
MR. TRAWICK: We move for a mistrial on the ground that one of the jurors didn’t fully consent to the verdict: It is not a unanimous verdict.
THE COURT: I overrule your motion because I have accepted her assurance that it was her verdict,—
JUROR: Yes, sir.
THE COURT: —and she is now shaking her head it is her verdict, and I do accept it as the verdict of the jury.
Thank you very much, and I’ll see you all at 9 o’clock in the morning.

We cannot conclude from this exchange that there was any interference with the jury’s deliberations by the trial court.

The purpose of polling the jury before the verdict is recorded is to give each juror the opportunity to declare his assent to what the foreman will return, and thus to enable the court to determine that the jurors are in agreement. See generally Annot. 71 A.L.R.2d 640 and Annot. 25 A.L.R.3d 1149. And although the parties by statute are given the right to poll the jury before the verdict is entered, Code of 1975, § 12-16-15, we do not doubt that the trial judge, for the above reasons, may in his discretion poll the jury ex mero motu prior to the time the verdict is received. Indeed, a verdict is not a finding by the jury until approved and accepted by the court. Robert P. Stapp Machinery Co. v. Russell, 277 Ala. 84, 167 So.2d 167 (1974). We find no abuse of that discretion here in the trial court’s decision to poll the jury before the verdict was announced.

Nor was any error committed in the process the court used to ascertain the verdict of the juror who first hesitated in response to its inquiry. In Winslow v. State, 76 Ala. 42 (1884), a polled juror responded, “not exactly”; after further deliberation the juror stated, “I agree to it.” That answer was held to be agreement with the verdict. And in Martin v. State, 23 Ala.App. 281, 124 So. 392; cert. den. 220 Ala. 149, 124 So. 393 (1929), the polled juror first answered, “I reckon so,” but upon further questioning stated that the verdict was that of the jury and he agreed to it. The Court observed:

The court was fully authorized to find, from the examination of said juror on the poll, that the verdict returned represented his convictions. When this is true, the verdict is sufficient and will be received. [Citations omitted.]

See also McAlpine v. State, 117 Ala. 93, 23 So. 130 (1898).

We note further that the defendant moved for a mistrial without first requesting that the court order further deliberations. Such a request is required as a condition precedent to a request for a mistrial, in keeping with the mandatory language of § 12-16-15, “if any answer in the negative, the jury must be sent out for further deliberation.” Perry v. State, 56 Ala.App. 454, 322 So.2d 745 (1975); Ray v. State, 39 Ala.App. 257, 97 So.2d 594 (1957).

Under the second issue, we find no “disparagement of defenses” in the jury’s presence. The issue presented relates to certain lines which had been drawn upon an aerial photograph, and upon an overlay of that photograph, admitted into evidence. James Ray, a civil engineer and land surveyor, testified that he had prepared the overlay, and that the lines drawn thereon had nothing to do with property lines, but referred only to A.S.C.S. work. On cross-examination, counsel for the defendant was allowed to interrogate Ray about the section and mark lines on the overlay and photograph, and then asked:

Q. Right. Now, these lines that are on the government map here, the department of agriculture map, indicate the property lines, do they not?
MR. WHIGHAM: Your Honor, we object to this. We will have someone from the A.S.C.S. to testify to that.
THE COURT: I believe Mr. Ray testified he didn’t put the line there and is not knowledgeable as to why they are there. Mr. Wynn will testify to that. I sustain the objection.
MR. TRAWICK: We except.

Another witness, Jim Wynn, an employee of A.S.C.S., testified that the lines appearing on the photograph pertained to A.S.C.S. work and were not intended as property lines. In cross-examination of this witness, defendant was allowed to ask questions concerning the indications of the lines, and continued:

Q. So, these lines here, just like you have got them running up here through the woods and not through the fields, wouldn’t that be to indicate where you consider the landline to be?
A. No, sir.
MR. WHIGHAM: I object, your Honor. He has answered the question.
THE COURT: Overruled, cross-examination. Overruled.
Q. What does it indicate, Mr. Wynn?
A. It indicates that it is open land in this area right here that is covered under this worksheet which is number—
Q. Now, this worksheet number N-56, I believe it is, would indicate a given farm, would it not?
A. So far as open land is concerned.
Q. And a given farmer?
A. So far as the open land is concerned, yes, sir.
[The defense counsel continued his questioning trying to indicate that the mark was an indication of a property line and the following took place:]
Q. And then across this line would indicate the Comer property, wouldn’t it?
MR. WHIGHAM: Your Honor, the witness has testified these are not indications of property lines.
THE COURT: I’m going to sustain the objection to any further questions about the line with any implication that is a landline, because Mr. Wynn has stated that it is, simply, a dividing line in his office to divide one person’s property, generally, from another. It is not laid down with any intention of showing the landline.
MR. TRAWICK: Your Honor, I’m not saying he is a surveyor.
THE COURT: You are leaving an impression on the jury that that is the landline.
MR. TRAWICK: No, the impression I’m seeking to create is one I hope you will let me—
THE COURT: I think it has — When this line was put down, somebody just put the ruler down there for their purposes. It has nothing to do with where the landline is between those peoples property.
MR. TRAWICK: Judge, I’m not yet suggesting that is an accurate landline, and I do not intend to later; but, I do want to show that the department of agriculture has treated it as a dividing line between the Rushes and the Comers.
THE COURT: But not as a landline: It is a dividing line for their purposes in their office.
MR. TRAWICK: Right, in their office just as others have treated it as such, may it please the Court, as the evidence—
THE COURT: (Interposing) How does that refer to the evidence here that it created it one way or — We are looking for a landline between the property.
MR. TRAWICK: May it please the Court, they have offered this in evidence.
THE COURT: Yes, sir.
MR. TRAWICK: They have offered the lines and there is a variance, if your Honor would look at it closely, between where the surveyor put the line and where the department of agriculture has the line.
THE COURT: The department of agriculture didn’t put a landline, the surveyor put a landline: that is the trouble. Now, just go on and ask him another question and we will proceed.

We must point out that defense counsel made no specific objection to any of these rulings of the court, and hence failed to preserve anything for review if those rulings were not manifestly erroneous. On the question of abuse of the right to cross-examine, see Carlisle v. Miller, 275 Ala. 440, 155 So.2d 689 (1963). It appears from the record that defense counsel had received the witness’s response to his inquiry concerning the effect of the lines more than once, and his further inquiries may have tended to be argumentative. In any event, the trial judge was exercising his discretion to maintain control over the extent of the cross-examination, and from the record we cannot hold that his discretion was abused.

Having found no error under the issues raised, we have concluded that the judgment must be affirmed. It is so ordered.

AFFIRMED.

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

      . Apparently a reference to the Agricultural Stabilization and Conservation Service.

      . The record, in fact, shows that the cross-examination of Wynn specifically included inquiry concerning an ancient fence depicted by a line on the photograph:
      Q. Was that intended to indicate a fence line or what?
      A. No, just an area. In other words, this line inside of this line is the back line that goes under that worksheet separating crop land, mainly.