text:
    SHEPHERD REALTY COMPANY, INC., et al. v. WINN-DIXIE MONTGOMERY, INC., et al.
    80-720.
    Supreme Court of Alabama.
    Aug. 27, 1982.

      Charles E. Sharp of Sadler, Sadler, Sullivan, Sharp & Stutts, Birmingham, for appellants.
    Frank M. Young, III, Judson E. Tomlin, Jr., and Perry E. Pearce of North, Haskell, Slaughter, Young & Lewis, P.A., Birmingham, for appellees.
   EMBRY, Justice.

Shepherd Realty Company, Inc., appeals from a final judgment, entered after an ore tenus hearing, which denied recovery against Winn-Dixie Montgomery, Inc., for breach of contract. We affirm.

The dispositive issue in this case is whether the trial court erred to reversal in its findings, conclusions, and entry of judgment under the evidence in this case. This being true, other issues raised by appellant need not be addressed.

On 11 May 1971, the Eugene Wylie Corporation and Winn-Dixie Montgomery entered into a twenty-year lease for occupancy by Winn-Dixie of 30,000 square feet of premises for the operation of a supermarket in a development known as Brookwood Village Convenience Center immediately adjacent to the then proposed Brookwood Mall. Winn-Dixie Stores was the guarantor of the obligations of Winn-Dixie Montgomery under the terms of that lease. Shepherd Realty is the current owner of the premises and the assignee of the rights of the landlord-lessor party to the 1971 lease to Winn-Dixie.

The 1971 lease was the result of arm’s-length negotiations that took place in the usual course of business. Part of those negotiations centered around a letter of intent addressed to Winn-Dixie by Shepherd Realty dated 22 October 1970. That letter dealt with many of the preliminary negotiations needed for creation of the lease, including the following: location, amount of space to be occupied by lessee, amount of rentals and the term of occupancy. Section 6 of the letter contained the following provision:

“(c) Tenant agrees to join the Brook-wood Merchants Association when formed and pay for the first_years of the term $.____ and for the_years immediately following $.. monthly as dues. Tenant agrees to contribute $_toward the opening promotion of the center.”

The letter of intent was never signed by Winn-Dixie.

Winn-Dixie prepared a draft of the lease and it was reviewed, discussed, and modified, by both parties until agreement was reached regarding terms of the lease, which were then reduced to writing. There was no specific reference requiring membership in the Brookwood Village Merchants Association contained in the lease. There was, however, paragraph 42, entitled “Rules and Regulations,” that stated:

“42. Tenant agrees to abide by all reasonable rules and regulations promulgated by Landlord from time to time, the purpose of which rules and regulations is to promote the best interests of the shopping center and its customers. Tenant intends to operate its business in keeping with the dignity and reputation of the shopping center, and will make every reasonable effort to work harmoniously with Landlord, other merchants in the Center and residents of the surrounding area.”

Shepherd Realty contends that paragraph 42 was intended to require Winn-Dixie to join the merchants association and to remain a member. A major conflict in the evidence arose when James Wylie Shepherd, President of Shepherd Realty, testified that Bamber Cox, an employee of Winn-Dixie with whom Shepherd Realty was negotiating, acknowledged that paragraph 42 required Winn-Dixie to become a member of the merchants association and to thereafter continue to be a member. Cox testified that he did not recall such an ac-knowledgement. Cox did recall, however, that Winn-Dixie agreed to contribute monies to the merchants association.

The Brookwood Village Merchants Association was formed in 1974 upon completion of the Brookwood Village Mall area. The yearly dues for membership were set at twenty cents per square foot of space occupied by a lessee. In a series of communications between Winn-Dixie and Shepherd Realty during July 1974, Winn-Dixie offered to pay a lesser amount than twenty cents per square foot as dues to the merchants association. This offer was rejected and Shepherd Realty would not agree to any deviation from the twenty-cent figure.

Winn-Dixie paid monthly dues from the time the merchants association was organized in 1974 until the dues were increased to twenty-eight cents per square foot in August 1979. It initially refused to pay the increased dues; later it sought to discontinue paying any dues. Shepherd Realty threatened to declare Winn-Dixie’s lease in default for nonpayment of dues, whereupon Winn-Dixie agreed to pay the increased dues under protest.

Shepherd Realty filed a complaint against Winn-Dixie on 9 May 1979 for breach of contract based upon Winn-Dixie’s refusal and protest of payment of the increased dues. Winn-Dixie answered the complaint by generally denying that it was required to be a member of the merchants association. Also, it specifically denied that paragraph 42 of the lease required membership in the association.

Shepherd Realty amended its complaint to allege fraud by Winn-Dixie in misrepresenting that it would become a mandatory member of the merchants association and sought an additional one million dollars in punitive damages. In a later amendment, Shepherd petitioned the court to reform the contract to require that Winn-Dixie be a mandatory member of the merchants association. Winn-Dixie filed answers denying both claims in the amendments.

On 29 December 1980 this case was heard by the trial court without a jury. Judgment was entered, and a memorandum opinion filed on 17 April 1981, in favor of Winn-Dixie. The trial court concluded that Winn-Dixie was not required to be a member of the Brookwood Village Merchants Association and its refusal to pay the increased dues or join the merchants association did not cause it to be in default under the lease. Further, that Winn-Dixie was entitled to recover all dues paid to the merchants association under protest together with interest at the rate of six percent per annum from date of first payment of dues in August 1979 until February 1980 when increased dues went into effect, in the event it elected not to continue as a member of the merchants association. If, however, Winn-Dixie elected to continue to be a member, it must pay appropriate dues and would be a member at will entitled to withdraw at any time, upon reasonable notice to the merchants association and to plaintiffs (appellants here). On 5 May 1981, Winn-Dixie filed an election not to continue as a member of the Brookwood Village Merchants Association.

There was " no error in the trial court’s ruling that Winn-Dixie was not required to be a member of the Brookwood Village Merchants Association. There is no specific language in the lease requiring Winn-Dixie to join the merchants association. Furthermore, the record reflects that specific language requiring such membership was found in the leases of other tenants of Brookwood Village but not in the Winn-Dixie lease.

Shepherd Realty vigorously argues that paragraph 42 of the lease should be construed as requiring Winn-Dixie to become and remain a member of the merchants association. Upon a careful reading of that paragraph, together with the other terms of the lease, we conclude that paragraph 42 cannot be construed as requiring Winn-Dixie’s membership in the merchants association. Rather, we conclude that this paragraph, on its face, only provides a means by which Shepherd Realty may compel Winn-Dixie to comply with rules affecting the normal operation of Brookwood Village Convenience Center of a nature regarding parking, maintenance, etc., insofar as its premises and appurtenant facilities are concerned. Once a contract between two parties is reduced to writing, absent mistake or fraud, the courts must construe the contract as written. “Furthermore in the absence of ambiguity the court cannot interpret the contract but must take it as it is written.” Darling Shop of Birmingham v. Nelson Realty Co., 255 Ala. 586, 52 So.2d 211 (1951).

Paragraph 33 of the lease also militates against a liberal construction of paragraph 42. Paragraph 33 provides:

“33. This written lease contains the complete agreement of the parties with reference to the leasing of the demised premises except plans and specifications for tenant’s store and related improvements to be formally approved by the parties prior to the effective date of this lease.”

We agree with Winn-Dixie that “Paragraph 33 clearly indicates the lease constitutes the complete agreement between the parties.”

The trial court was correct in refusing to admit parol evidence to show the “true intent” of the parties. It is fundamental that the parol evidence rule prohibits the contradiction of a written agreement by evidence of a prior oral agreement. The rule provides, generally, that when the parties reduce a contract to writing, intended to be a complete contract regarding the subject covered by that contract, no extrinsic evidence of prior or contemporaneous agreements will be admissible to change, alter or contradict such writing. Hartford Fire Insurance Co. v. Shapiro, 270 Ala. 149, 117 So.2d 348 (1960).

There is no evidence in the record to support Shepherd Realty’s contention that fraud was committed upon it by Winn-Dixie. Fraud, which is never presumed, must be clearly and satisfactorily proved by the party seeking relief upon that basis. Lamb v. Opelike Production Credit Association, 367 So.2d 957 (Ala. 1979). The trial court heard the conflicting evidence ore tenus and found that no fraud was committed. After a careful review of the entire record we agree and will not disturb that finding. It is well settled that in an ore tenus case every presumption must be indulged in favor of the correctness of the judgment of the trial court and its findings will not be disturbed unless palpably wrong. Ford v. Alabama By-Products Corp., 392 So.2d 217 (Ala. 1980).

Under the facts of this case we conclude the trial court did not err in its findings or entry of judgment. The judgment below is due to be and is hereby affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    O. D. CASH v. WINN-DIXIE MONTGOMERY, INC.
    80-721.
    Supreme Court of Alabama.
    Aug. 27, 1982.

      James E. Hart, Brewton, for appellant.
    Daniel A. Pike of Sintz, Pike, Campbell & Duke, Mobile, for appellee.
   ALMON, Justice.

The plaintiff, O. D. Cash, brought an action for negligence against Winn-Dixie. The circuit court granted a directed verdict for the defendant.

The plaintiff was injured as a result of a fall which occurred about 3 p. m. in the Winn-Dixie store. He was a customer, and had been in the store approximately thirty minutes when the injury occurred. As the plaintiff entered isle # 10 he stepped on a can of food which caused him to fall. The plaintiff testified that earlier he had found a soft drink bottle on the floor in aisle # 3 or # 4.

The store manager testified that after the accident he observed a food can in the vicinity where the plaintiff fell. He examined the can and it showed no sign of having been stepped on or having skid across the floor. He had been in the area where the fall occurred as late as 12:30 p. m. and did not see a can on the floor. The store manager further testified that the store had been swept twice that day, the latest being at approximately 11 a. m.

The rule of law for cases such as this is that there is a duty upon all storekeepers to exercise reasonable care in providing and maintaining a reasonably safe premises for the use of their customers. The storekeeper is not an insurer of the customers’ safety but is liable for injury only in the event he negligently fails to use reasonable care in maintaining his premises in a reasonably safe condition. No presumption of negligence arises from the mere fact of injury to the customer. The burden rests upon the plaintiff to show that the injury was proximately caused by the negligence of the storekeeper or one of its servants or employees. Actual or constructive notice of the presence of the offending substance must be proven before the proprietor can be held responsible for the injury. See cases collected in Ala. Digest, Negligence, Key # 32(1).

It is not always necessary, however, to offer direct evidence as to the length of time a foreign substance has remained on the floor. In some cases it is permissible to allow a jury to infer the length of time from the nature and condition of the substance. This has been allowed where the substance is dirty, crumpled, mashed, or has some other characteristic which makes it reasonable to infer that the substance has been on the.floor long enough to raise a duty on the defendant to discover and remove it. S. H. Kress & Company v. Thompson, 267 Ala. 566, 103 So.2d 171 (1957).

The fact that the plaintiff found one soft drink bottle in another aisle does not show the. floor was littered to the extent required by law in such cases. The floor had been swept twice that day and appeared to be adequately maintained. There was no evidence that the can had been on the floor long enough to have been bent, mashed or mutilated in any manner. The store manager testified he examined the can and it showed no visible marks indicating the can had been stepped on or had skid across the floor.

There is no evidence in the record whatsoever that the defendant knew the can was on the floor or that the can had been on the floor for such an inordinate length of time as to impute constructive notice. For aught that appears, the can may have been dropped on the floor by another customer only minutes before the plaintiff fell.

Recently, this Court in Ex Parte Travis, 414 So.2d 956 (Ala.1982), reviewed a number of slip and fall cases and held that a jury question was presented because the paper sack, which caused the fall, was dirty and had a footprint impressed upon it. This was held sufficient, under the circumstances, to allow the jury to infer that the sack had been on the floor for a sufficient length of time to impute notice to the storekeeper. That case represents the very outer limit to which this Court has gone in upholding a jury verdict for the plaintiff.

The instant case, however, is distinguishable because here there is no evidence whatsoever that the can had been on the floor for any appreciable time.

The judgment is therefore affirmed.

AFFIRMED.

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


text:
    James W. COOPER, Jr. v. Dorothy Virginia COOPER, Executrix of the Estate of James W. Cooper, Sr.
    80-733.
    Supreme Court of Alabama.
    Aug. 27, 1982.
    John S. Somerset and John W. Sudderth, Birmingham, for appellant.
    Frank M. Bainbridge of Bainbridge & Mims, Birmingham, for appellee.
   ALMON, Justice.

The appellant brought this action to establish an equitable mortgage on certain land owned by the estate of his deceased father, James W. Cooper, Sr. The circuit court granted summary judgment in favor of the estate.

The answer to the complaint and motion for summary judgment set forth the defense of res judicata, estoppel, laches and the ten-year statute of limitations.

The defense of res judicata is based upon a prior suit filed by James W. Cooper, Sr., against the appellant and James W. Cooper, Sr.’s other children. This prior suit involved title to the land here in question and was decided adversely to appellant. For a detailed statement of the facts and holding of the prior suit see, Cooper v. Cooper, 289 Ala. 263, 266 So.2d 871 (1972).

The appellant contends the trial court erred in granting summary judgment on the basis of res judicata.

“The elements of res judicata are as follows: (1) prior judgment rendered by court of competent jurisdiction; (2) prior judgment rendered on the merits; (3) parties to both suits substantially identical; and (4) same cause of action present in both suits. Stevenson v. International Paper Co., 516 F.2d 103 (5th Cir. 1975). If these elements are present, then the former judgment is an absolute bar to any subsequent suit on the same cause of action, including any issue which was or could have been litigated in the prior action. McGruder v. B & L Construction Co., 331 So.2d 257 (Ala. 1976).”

Russell v. Russell, 404 So.2d 662, 664 (Ala. 1981). The appellant argues that the cause of action in the two suits was different and therefore res judicata would not apply. Even though the prior suit dealt primarily with the dissolution of a partnership and the present litigation is characterized as a suit to establish an equitable mortgage, title to the same piece of real estate property is involved in both cases. The prior suit established title to the property in James W. Cooper, Sr. Even though the exact theory under which the appellant makes his claim may not have been actually litigated between the parties in the prior suit, appellant had every opportunity to advance any theory he wished in the prior litigation. See, Waldrep v. Goodwin, 348 So.2d 491 (Ala. 1977), and Brown v. Olsson, 254 Ala. 695, 49 So.2d 564 (1950). Certainly, title to the land here involved was within the issue of an accounting between the partners because the property was a partnership asset.

The judgment of the circuit court is hereby affirmed.

AFFIRMED.

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


text:
    ROY BUCKNER CHEVROLET, INC. v. Robert CAGLE.
    80-739.
    Supreme Court of Alabama.
    Aug. 27, 1982.

      Robert C. Boyce, III of Furner, Boyce & Nave, Bessemer, for appellant.
    John L. Cole and J. Perry Morgan, Birmingham, for appellee.
   ALMON, Justice.

Robert Cagle brought an action for breach of contract against Roy Buckner Chevrolet, Inc. A jury fixed his damages at $11,522.17.

In November, 1977, Cagle went to Roy Buckner Chevrolet to discuss the purchase of a 1978 Chevrolet Corvette, known as a “Limited Edition Corvette CP”. General Motors Corporation produced only a limited number of these automobiles, which were referred to as “Indy Vettes” because one or more of them were used as pace cars at Indianapolis.

Cagle talked to the assistant used car manager, who referred him to Joel Kelly, the new car sales manager. The assistant used car manager partially filled out a “buyers order” form which was then presented to Kelly. After the initial discussion, Kelly agreed to sell Cagle an “Indy Vette” at list price. Kelly wrote “list price” and signed his name on the “buyers order”. His signature did not appear in the space provided for the signature of an officer of Roy Buckner Chevrolet, but rather was signed in the middle of the page. The form was only partially completed at the time of Kelly’s signature. Cagle also signed the order form and gave Kelly a $500 deposit. When the form was signed, Roy Buckner Chevrolet did not have an “Indy Vette” in its possession, but later received two such automobiles.

Roy Buckner Chevrolet notified Cagle that it would not sell him one of these cars and attempted to return his deposit. Cagle refused the attempted return of the deposit and brought suit.

There is no disagreement about damages, as the market value of this limited edition “Indy Vette” was substantially higher than the manufacturer’s suggested list or sticker price. It is also conceded that Kelly had the authority to bind and contract for the corporation.

The appellant argues several issues for reversal, however. The principal one is whether a valid contract was consummated. Appellant asserts that there was never a meeting of the minds and that the memorandum was insufficient under Code 1975, § 7-2-201(1). That section states:

“(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500.00 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon, but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.”

The appellant claims that the “buyers order” was only partially complete and several important spaces were left blank, and therefore, that it does not comply with § 7-2-201(1). The “buyers order” is characterized by the appellant as nothing more than an agreement to enter into a future agreement. We do not agree.

Kelly testified as follows:

“Q And you recall the situation and the dealings with Mr. Cagle on that occasion?
“A Yes, sir.
“Q Did you offer to sell that car to Mr. Cagle for list price?
“A Yes, sir.
“Q Did he accept that offer.
“A Yes.
“Q Did he make a down payment of $500 to Roy Buckner Chevrolet?
“A Yes, sir.
“Q Was he given a receipt for that down payment?
“A Yes, sir.
“Q Was he told that when the car came in, the first Indy ’Vette would be his?
“A Yes, sir.
“Q And when the car came in was he told it will not be sold to [sic] you?
“A Yes.”

It is undisputed that Kelly was acting in his capacity as sales manager and was an agent for Roy Buckner Chevrolet, with the authority to contract. In light of Kelly’s testimony, it is obvious that he intended to bind the parties immediately and not merely to agree at a future date. The question then becomes whether the “buyers order” form is a sufficient memorandum under the statute of frauds contained in § 7-2-201(1).

It is true that the order form is only partially complete and is not signed in the designated place by an officer of Roy Buckner Chevrolet. However, open terms in a contract are not conclusive on the indefiniteness of the contract.

“(1) A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.
“(2) An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined.
“(3) Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.” (Emphasis added.)

Code 1975, § 7-2-204.

The Official Comment to § 7-2-204 adds: “If the parties intend to enter into a binding agreement, this subsection recognizes that agreement as valid in law, despite missing terms, if there is any reasonably certain basis for granting a remedy. The test is not certainty as to what the parties were to do nor as to the exact amount of damages due the plaintiff. Nor is the fact that one or more terms are left to be agreed upon enough of itself to defeat an otherwise adequate agreement. Rather, commercial standards on the point of “indefiniteness” are intended to be applied, this Act making provision elsewhere for missing terms needed for performance, open price, remedies and the like.
“The more terms the parties leave open, the less likely it is that they have intended to conclude a binding agreement, but their actions may be frequently conclusive on the matter despite the omissions.”

The form is signed by both parties, and states the quantity and price of the car. Even though the price is stated to be the list price, we feel this is sufficiently definite. Code 1975, § 7-2-305, provides that parties may conclude a contract even though the price is not settled. In agreeing to let the price be fixed at the amount stated on the list, both parties were bound by the obligation of good faith contained in Code 1975, § 7-1-203.

The appellant also contends no specific car can be identified from the “buyers order”. Both Kelly and Cagle testified that it was understood that the first “Indy Vette” that came in would be the subject of their contract. We think this expresses the intent of the parties as to which car would be sold even though a specific car could not have been identified at the time of the making of the contract. Again, the obligation of good faith (§ 7-1-203) would apply.

The last claim of error concerns the rejection of certain evidence. The appellant attempted to introduce several other “buyers order” forms executed by Kelly in an effort to show that they were signed by Kelly in a different place on the form. These forms were offered to show that Kelly did not intend to enter into a contract because if he had, he would have signed the form in question in the normal place rather than on the middle of the page. The appellant argues that, when relevant, one’s custom or habit may be shown as an exception to the hearsay rule. We agree with the general statement of the rule, but conclude that the trial court did not erroneously reject the offer. As previously indicated, Kelly’s testimony was to the effect that he intended to contract. There was no offer to impeach the employee’s testimony. Moreover, the order forms tendered were for automobiles known and identifiable, whereas the “Indy Vette” transaction was admittedly different and unusual and the exact nomenclature of the “Indy Vette” was unknown. Additionally, appellee counters appellant’s argument by saying that appellant should not be allowed to pick and choose the order forms which show a different method of execution, but rather should offer all such forms. We will not decide this question, however. We are of the opinion that under the circumstances the trial judge did not abuse his discretion in rejecting the evidence.

Accordingly, the judgment is affirmed.

AFFIRMED.

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


author: EMBRY, Justice.

text:
    NORTHLAND INSURANCE COMPANIES, et al. v. The CITY OF MONTGOMERY, Alabama, a Municipal Corp., et al.
    81-49.
    Supreme Court of Alabama.
    Aug. 27, 1982.

      Michael S. Jackson and Joe Espy, III of Melton & Espy, Montgomery, for appellants.
    Charles B. Paterson of Ball, Ball, Duke & Matthews, and G. Dennis Nabors, Montgomery, for appellee The City of Montgomery.
    Thomas T. Gallion, III of Gallion, Gallion & Gunter and John P. Kohn, Jr., Montgomery, for appellee Jack W. Chambliss.
   EMBRY, Justice.

The City of Montgomery and Jack W. Chambliss brought this action seeking a declaratory judgment to determine the obligations of Northland Insurance Companies and Northfield Insurance Company under a policy of insurance issued to the City of Montgomery. From the judgment declaring that the City of Montgomery and Chambliss were entitled to coverage, and are to be afforded a defense, Northland takes this appeal. We affirm.

The following is a paraphrase of the stipulated statement of facts made by the parties to this action before the trial of same:

On 15 November 1979, Motell Taylor allegedly suffered injuries and damages arising from an automobile accident which occurred at an intersection in Montgomery; Taylor filed his suit for damages on 14 May 1980 against numerous defendants, including the City of Montgomery. The claim against the City of Montgomery was based upon an alleged malfunction of a traffic control signal light at the intersection where the accident occurred. Taylor amended the complaint on 11 November 1980 to include a claim against Chambliss, the city traffic engineer for Montgomery. The City of Montgomery made demand upon Northland to provide the City and its employee Chambliss with a defense, and with indemnity to the extent of policy limits, in the action filed by Taylor. Northland denied coverage under the policy, whereupon the City of Montgomery filed its action seeking a declaratory judgment to determine the liabilities and rights of the parties under the insurance contract between Northland and the City of Montgomery. Subsequently, Chambliss filed a separate action on his own behalf, seeking the same judicial determination. On 19 June 1981, the two claims were consolidated by order of the trial court and thereby became the action in which we now review the judgment entered below.

The trial court allowed the stipulation of facts to be amended, over Northland’s objection, to include the following section of the Municipal Code of the City of Montgomery:

“The City of Montgomery shall . . . designate . . . appointive officers including city clerk, chief of police, fire chief, superintendent of waterworks, city comptroller, city engineer, superintendent of sanitation, city traffic engineer....”

The trial court took the case under submission and on 18 September 1981 entered a judgment compelling Northland to defend both the City of Montgomery and Cham-bliss and to indemnify them up to the policy limits, should judgment be rendered against them in Taylor’s case. Northland appeals from that judgment.

Northland contends the trial court erred when it ruled that the negligent maintenance of a traffic signal and power switch and negligent obstruction of vision are within the scope of coverage provided by Northland to the City of Montgomery and its employees. Northland supported this argument by claiming the insurance policy dealt only with the “existence” of roads and streets as opposed to the “use” of them.

The record shows the insuring clause to read as follows:

“Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
A. bodily injury or
B. property damage
to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use of the insured premises and all operations necessary or' incidental thereto... . ”

Premises and operations are defined under the “Coverage Part” as:

“Streets, Roads, or Highways . . . with or without sidewalks including bridges and culverts but excluding toll bridges and draw bridges — existence only.”

In reading these provisions it is apparent that the insurance policy is ambiguous as to the extent of coverage. The term “existence,” used in context with streets and highways, has been interpreted different ways in foreign jurisdictions. See Dora Township v. Indiana Insurance Company, 78 Ill.2d 376, 36 Ill.Dec. 341, 400 N.E.2d 921 (1980); American Employers Insurance Company v. Board of County Commissioners of the County of Adams, State of Colorado, 547 F.2d 511 (10th Cir. 1976). Examination of these interpretations of the term “existence” shows that such usage is ambiguous. Courts construe insurance contracts in a manner to give effect to the intent of the parties. However, when there is ambiguity the courts will resolve that ambiguity favorably to the insured. Employees Insurance Company of America v. Jeff Gin Company, 378 So.2d 693 (Ala.1979). Therefore, other pertinent sections of the contract must be examined in order to determine coverage of the insurance contract to be interpreted in this case.

The City of Montgomery and Cham-bliss contend they relied upon the insuring clause that provided coverage for “bodily injury ... arising out of the ownership, maintenance or use of the insured premises and all operations necessary or incidental thereto.”

Traffic control lights are as much a part of streets and highways as are stop signs, speed breakers and dividing lines; all are used as means of traffic control. There would be chaos in the traffic on streets and highways without the aid of these items. Traffic control devices must be considered as integral parts of the “operations necessary and incidental thereto” of the streets and highways in Alabama. The trial court correctly construed ownership, maintenance or use of insured premises and all operations necessary or incidental thereto, to include traffic control signal lights.

The general liability policy issued by Northland to the City of Montgomery was a standard form of policy obviously written contemplating a primary application to a private business rather than a municipal corporation. The policy contained the following coverage:

“II. PERSONS INSURED
“Each of the following is an insured under this insurance contract to the extent set forth below:
“(c) If the named insured is designated in the declarations as other than an individual, partnership or joint venture, the organization so designated as any executive officer, director or stockholder thereof, while acting within the scope of his duties as such;”

It is plain that municipal corporations do not generally have executive officers, directors and stockholders. The quoted phrase is patently ambiguous, requiring this court to consider other evidence in order to determine the correct applications of coverage under this policy.

The title “executive officer” has been extended to include many municipal functions in Alabama and foreign jurisdictions. They include: a superintendent of highways, Van Buren v. Town of Richmondville, 257 A.D. 1089, 14 N.Y.S.2d 697 (1939); a building supervisor, Pullen v. Cincinnati Insurance Co., Inc., 400 So.2d 393 (Ala.1981); and department heads, Holm v. Mutual Service Casualty Ins. Co., 261 N.W.2d 598 (Minn. 1977).

The code of the City of Montgomery specifically lists the city traffic engineer as an appointive officer of the city. It appears that by virtue of his title, duties and responsibilities, the city traffic engineer operates in the same manner as “any executive officer.” Language used in insurance policies is framed by the insurer and the courts are to construe such language favorably to the insured. United States Fire Insurance Co. v. McCormick, 286 Ala. 531, 243 So.2d 367 (1970).

Northland further contends the trial court erred by allowing the stipulation of facts to be amended to include applicable sections of the Municipal Code of the City of Montgomery, Alabama, 1964, over the objection of Northland. After Northland complained about the amendment, Cham-bliss requested that the trial court take judicial notice of the city code instead of amending the stipulation of facts; the trial court then did so, as is shown in the record.

Northland suffered no prejudice to its cause from this action of the trial court even if it is assumed to be error. While the trial court was incorrect in amending the stipulation of facts without the consent of Northland, the harmless error rule applies. The trial court can take judicial notice of a municipal ordinance under authority of § 12-21-95, Code 1975.

For the reasons assigned, the judgment below is due to be and is hereby affirmed.

AFFIRMED.

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


text:
    Chester BLAND v. Virgil HUNTER.
    81-154.
    Supreme Court of Alabama.
    Aug. 27, 1982.
    Chester Bland, pro se.
    M. Wayne Wheeler of Wheeler, Christian & Roberts, Birmingham, for appellee.
   EMBRY, Justice.

This appeal, pro se, by Chester Bland, complains of the entry of certain judgments by the trial court in two cases consolidated for trial below.

Appellee, Virgil Hunter, has filed a motion to dismiss this appeal and a brief in support thereof. The motion to dismiss is well taken and is hereby granted. This appeal is dismissed for failure to comply in any respect with the Alabama Rules of Appellate Procedure regarding form and content of the alleged brief in support of the appeal. It is unintelligible to the extent that this court cannot discern what errors are being urged by appellant.

APPEAL DISMISSED.

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


text:
    David A. JOHNSON v. I.B.E.W. LOCAL 558 PROPERTIES, INC., et al.
    81-181.
    Supreme Court of Alabama.
    Aug. 27, 1982.
    Keith M. Collier, Florence, for appellant.
    Robert L. Potts and Bruce J. McKee of Potts, Young & Blasingame, Florence, for appellees.
   EMBRY, Justice.

David Johnson appeals from a summary judgment dismissing his action against I.B. E.W. Local 558 Properties, Inc., and I.B. E.W. Local 558. We affirm.

On 6 June 1980 an automobile being operated by Johnson collided with one being operated by Eugene Quillen in the City of Muscle Shoals, Alabama. At that time, Quillen was returning home after voting in an I.B.E.W. Local 558 election at the local union hall. Several hundred of the members participated in the election and many of them, including Quillen, stayed after the balloting closed in order to learn the results of the election.

According to Quillen’s deposition, he brought four cans of beer with him from his home to the union hall and consumed them while on union property. No alcoholic beverages were furnished at the union hall and Quillen stated that he did not observe anyone else drinking alcoholic beverages while he was there.

Affidavits of several other members of the local union, and its officers, show that no one noticed Quillen or anyone else drinking alcoholic beverages on union property. Nor did anyone notice whether Quillen appeared intoxicated during the balloting and the tabulation of those ballots. Those affidavits also show that the union bylaws prohibit possession or consumption of alcoholic beverages on union property. However, an affidavit of one Dr. Gamble stated that he drove by the union hall that date and observed many people drinking beer outside the hall.

Johnson filed his action against Quillen seeking damages for the negligent operation of the automobile. Subsequently, he amended his complaint to include, as defendants, I.B.E.W. Local 558 Properties, Inc., and I.B.E.W. Local 558, a corporation, and such persons acting as directors and officers or those seeking election to become directors or officers of the union. The amended complaint was based upon two theories. First, that both the I.B.E.W. Local and its properties corporation allowed alcoholic beverages to be distributed or consumed on their premises and in doing so caused Quillen to become intoxicated which subsequently caused him to operate his automobile to collide with that of Johnson, resulting in injuries to the latter. Second, that the I.B.E.W. Local and its properties corporation violated provisions of the Code of Alabama and local ordinances by allowing alcoholic beverages to be consumed on their premises.

Johnson and Quillen made a pro tanto settlement in connection with which the claim against Quillen was dismissed with prejudice.

The union entities filed a motion for summary judgment on the grounds that no genuine issue as to any material facts existed and they were, therefore, entitled to judgment as a matter of law. The motion was submitted upon Quillen’s deposition and the affidavits, together with the “files and records in this proceeding.” The trial court entered judgment on the motion in favor of the union entities. Johnson then perfected this appeal.

Although not even suggested in his complaint, Johnson’s claims are obviously based upon negligence for the violation of §§ 28-4-70 and 28-4-90, Code 1975 (misdemeanors), pertaining to alcoholic beverages and unlawful drinking places.

It is undisputed that Quillen consumed alcoholic beverages while on union property. However, there was no evidence to support Johnson’s contention that the union entities in anywise furnished, sold, or encouraged the consumption of any alcoholic or intoxicating beverages on their property.

In Fox v. Bartholf, 374 So.2d 294 (Ala. 1979), this court established four basic requirements supporting a cause of action based upon statutory violation. Those are:

“(1) The trial judge must determine as a matter of law that the statute was enacted to protect a class of persons which includes the litigant seeking to assert the statute....
“(2) The trial judge must find the injury was of a type contemplated by the statute....
“(3) The party charged with negligent conduct must have violated the statute ....
“(4) The jury must find the statutory violation proximately caused the injury-”

There was no evidence that union entities violated § 28-4-70 or § 28-4-90, Code 1975. Therefore, the third requirement stated in Fox, supra, is not met. True, the evidence shows that Quillen consumed alcoholic beverages on union premises and was, therefore, in violation of laws prohibiting possession of those beverages in “dry” counties. There was no evidence submitted to prove that the union entities, its members, or officers, furnished alcoholic beverages or approved of the consumption of them by Quillen. Additionally, there was no proof showing that Quillen or other union members were on union premises for the purpose of consuming alcoholic beverages. The primary reason Quillen and other members were at the union hall was for the purpose of voting in the election being held there.

The 1975 Code defines unlawful drinking places in § 28-4-1(9) as follows:

“a. Any place or resort where the prohibited liquors or beverages or any of them are kept to be drunk upon or about the premises by persons resorting there for that purpose;
“b. Any club room or other place in which are received or kept for the purpose of barter or sale or use or gift as a beverage or for distribution or division among or furnishing to or for use by members of any club or association of persons by any means whatsoever the prohibited liquors and beverages or any of them, referred to in subdivision (6) of this section; and
“e. Any club room or room of any association of persons in which said prohibited liquors or beverages or any of them are kept or stored for the purpose of being drunk or consumed by the members of such club or other association of persons or their guests or others on the premises or at or near the place where such liquors or beverages or any of them, are kept or stored; and any place adjacent to or near the premises of any club, corporation or association or other combination of persons to which members or their guests or others, by the permission of members, resort for the purpose of drinking the prohibited liquors and beverages, or any of them that are kept at or near such place.”

By that definition the union hall premises is not an unlawful drinking place. See Lambert v. State ex rel. Hunter, 248 Ala. 487, 28 So.2d 412 (1946). Therefore, the union entities cannot be held in violation of § 28-4-70 or § 28-4-90, Code 1975.

Because there was neither a question of material fact to be resolved by the jury nor evidence that the union entities violated the first mentioned statutes, they were entitled to judgment as a matter of law. The trial court properly granted the motion for summary judgment and entered judgment accordingly. That judgment is hereby affirmed.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    Larry KINNON v. UNIVERSAL UNDERWRITERS INSURANCE COMPANY.
    81-185.
    Supreme Court of Alabama.
    Aug. 27, 1982.

      Steven F. Schmitt of Hornsby & Schmitt, Tallassee, for appellant.
    Bibb Allen of London, Yancey, Clark & Allen, Birmingham, for appellee.
   BEATTY, Justice.

This is an appeal from a declaratory judgment rendered by the Circuit Court of Tallapoosa County in a proceeding to determine insurance coverage.

On or around September 7, 1979, Thrash-Walters Ford-Mercury, Inc. (Thrash-Walters) sold an automobile to Carrie Smith. After a few days Ms. Smith returned the car to the garage of Thrash-Walters for repairs. The garage allowed Ms. Smith to use a 1978 Ford Fairmont owned by Thrash-Walters as a substitute automobile while her car was being repaired. Ms. Smith used this car for several weeks up through October 21, 1979. On that date Willie James Terrell, who lived in Ms. Smith’s household, was involved in a collision while driving this same Fairmont. The respondent, Larry Kinnon, was injured in the accident and later filed a claim for personal injuries in the Circuit Court of Tallapoosa County against James Terrell.

On February 6,1981, petitioner Universal Underwriters Insurance Company (Universal) filed its bill for declaratory judgment against respondents James Terrell and Larry Kinnon. Based on the stipulation of facts, exhibits and arguments of counsel, the trial court found that Terrell was not an “INSURED” under the garage liability policy issued to Thrash-Walters by Universal. We affirm.

The only issue presented is whether James Terrell was insured under the dealership’s insurance policy. The identity of the insured and liability of the insurer are determined from the terms of the contract, Armstrong v. Security Insurance Group, 292 Ala. 27, 30, 288 So.2d 134, 136 (1973), and this court must resolve any ambiguities contained in the policy in favor of the insured. Employers Ins. Co. of Alabama v. Jeff Gin Company, 378 So.2d 693, 695 (Ala.1979). But if a contract in its terms is plain and free from ambiguity, however, there is no room for construction, and it is the duty of the court to enforce it as written. E.g., Utica Mutual Insurance Company v. Tuscaloosa Motor Company, Inc., 295 Ala. 309, 313, 329 So.2d 82, 85 (1976); Southern Guaranty Insurance Company v. Wales, 283 Ala. 493, 496, 218 So.2d 822, 825 (1969); Chemstrand Corporation v. Maryland Casualty Company, 266 Ala. 626, 632, 98 So.2d 1, 6 (1957). Likewise, the court cannot refine away the terms of the contract that are expressed with sufficient clarity to convey the intent and meaning of the parties. Green v. Merrill, 293 Ala. 628, 631, 308 So.2d 702, 704 (1975).

The parties agree on which sections of the insurance policy are relevant. The following policy provision outlines the coverage provided. Capitalized words are defined in the policy.

“II. GARAGE LIABILITY “COVERAGE G-BODILY INJURY LIABILITY
“COVERAGE H-PROPERTY DAMAGE LIABILITY
“The company will pay on behalf of the INSURED all sums which the INSURED shall become legally obligated to pay as damages because of
G. BODILY INJURY or
H. PROPERTY DAMAGE
to which this insurance applies, caused by an OCCURRENCE and arising out of GARAGE OPERATIONS, including only the AUTOMOBILE HAZARD for which insurance is afforded as indicated in the schedule on Page One of this Coverage Part and the company shall have the right and duty to defend any suit against the INSURED seeking damages on account of such BODILY INJURY or PROPERTY DAMAGE, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.”

Page 2 of Garage Insurance Coverage Part No. 400.

It is clear from “Section II. GARAGE LIABILITY” that coverage extends only to an “INSURED.” The applicable definitions are set out below.

“ ‘NAMED INSURED’ means the person or organization named in Part B of this policy and identified on Page One of the applicable Coverage Part;”
“ ‘INSURED’ means any person or organization qualifying as an INSURED in the ‘Persons Insured’ provision of of the applicable insurance coverage. The insurance afforded applies separately to each INSURED against whom claim is made or suit is brought, except with respect to the limits of the company’s liability;” (Emphasis added.)

Page 1 of Part A.

“IV. PERSONS INSURED
“Each of the following is an INSURED under this insurance to the extent set forth below:
“Under the GARAGE BODILY INJURY and PROPERTY DAMAGE Liability Coverages:
“(1) the NAMED INSURED;
“(3) with respect to the AUTOMOBILE HAZARD;
“(a) any partner, or paid employee or director or stockholder thereof or a member of the household of the NAMED INSURED or such partner or paid employee or director or stockholder while using an AUTOMOBILE covered by this Coverage Part or when legally responsible for the use thereof, provided the actual use of the AUTOMOBILE is by the NAMED INSURED or with his permission, and
“(b) any person or organization legally responsible for the use thereof while such AUTOMOBILE is physically operated by the NAMED INSURED or any such partner or paid employee or director or stockholder, or member of the household of the NAMED INSURED or partner or paid employee or director or stockholder, provided the actual use of the AUTOMOBILE is by the NAMED INSURED or with his permission.”

Page 4, Garage Insurance Coverage Policy Part No. 400.

The dispute is centered on the interpretation of “IV. PERSONS INSURED (3)(b).” Under Section (3)(b) Terrell would be covered under the policy only if the vehicle which he was driving were found to be “physically operated by the NAMED INSURED or any such partner or paid employee or director or stockholder,” etc. The parties agree that Terrell is not a partner or paid employee or director or stockholder, etc. Therefore, for coverage to exist, Thrash-Walters, the named insured, must have been “physically operating” the automobile at the time of the accident.

The respondent, Kinnon, argues that the phrase “physically operated” is ambiguous and requires construction by the court. If there is an ambiguity, the policy must be construed against the insurance company, as we have shown.

Kinnon states that a patent ambiguity exists if “physically operate” means to “drive,” because a corporation cannot “drive” an automobile. Thrash-Walters is a corporation. Actually, the policy language “physically operated by the NAMED INSURED or any such partner or paid employee or director or stockholder ... of the NAMED INSURED, ” provides for a situation in which the named insured is a corporation. (Emphasis added.) Therefore, the named insured can be a corporation without causing the term “physically operated” to be ambiguous.

Additionally, the respondent, Kinnon, cites two cases to further his position that “physically operated” is ambiguous. In Trans-Continental Mutual Insurance Company, Inc. v. Harrison, 262 Ala. 373, 78 So.2d 917 (1955), this court upheld a finding that the word “operate,” as used in an insurance policy, was ambiguous and subject to construction by the court. The restrictive endorsement of that policy contained the phrase “being operated by the named insured.” This court limited the decision to the particular set of facts before it.

“As this is a case of first impression in Alabama, we here inject a word of caution for the benefit of the bar and litigants. The finding of fact of the Arkansas court was to the effect that the insured was physically present in the automobile directing the movements and directions and exhorting the driver to an unlawful rate of speed.
“We, therefore, hold that the trial court correctly found that the insured was ‘operating’ the automobile within the meaning of the exclusive endorsement to this policy of insurance. We decide nothing else.” (Emphasis added.)

Id. at 379, 78 So.2d at 922.

The other case cited by Mr. Kinnon is Truck Insurance Exchange v. Marks Rentals, Inc., 288 Md. 428, 418 A.2d 1187 (1980). The Marks opinion, written by the Court of Appeals of Maryland, is not persuasive because the policy at issue did not use “operate” in the same context as the policy in the present case. There are cases from other courts which we do find persuasive because of the similarity of facts and insurance policies to those in the case at bar.

The court in Leegaard v. Universal Underwriters Insurance Company, 255 N.W.2d 819 (Minn.1977), considered Section (3)(b) of a substantially similar policy. Leegaard was driving an automobile furnished to him by a garage while his car was being repaired. He was involved in an accident and later brought a declaratory judgment action to determine insurance coverage under the garage’s liability policy. The court found the policy to be unambiguous; consequently, Leegaard was not covered.

“It is quite clear that Universal’s policy insures a customer only when the vehicle is being operated by the named insured or an employee, director, stockholder, or member of the household of the named insured. Therefore, as determined by the trial court, Leegaard was not an ‘insured’ under Universal’s policy. . . . [Tjhere is no ambiguity in the language of Universal’s policy....”

Id. at 822.

The same result was reached in Universal Underwriters Insurance Company v. State Farm Automobile Insurance Company, 166 Mont. 128, 531 P.2d 668 (1975). The driver, D’Orazi, because of complications in the transfer of title, was driving a car belonging to a dealer and insured by Universal. The Montana Supreme Court found no ambiguity in the policy, stating:

“Section (3)(b) of Paragraph V of the policy provides that in addition to the named insured, any other person or organization legally responsible for the use of an owned automobile will be an additional insured under the policy provided that such automobile is physically operated by the named insured or any such partner or paid employee or director or stockholder or member of the household of the insured, partner, paid employee, director or stockholder.
“Since the 1962 Mercury was not physically operated at the time of the accident by the named insured or any partner, paid employee, director or stockholder, or member of the household of any of the foregoing specified category of persons, the D’Orazis do not come within the definition of an insured under Section (3)(b).”

Id. at 137, 531 P.2d at 673.

Mr. Kinnon also asserts that if the phrase “physically operated” is read in light of the “AUTOMOBILE HAZARD 1” provision concerning “GARAGE OPERATIONS,” an ambiguity exists.

“ ‘AUTOMOBILE HAZARD’ means that one of the following hazards for which insurance is afforded as indicated in the schedule on Page One of this Coverage Part.
“AUTOMOBILE HAZARD 1.
“(1) The ownership, maintenance or use (including loading and unloading) of any AUTOMOBILE for the purpose of GARAGE OPERATIONS, and (2) the occasional use for other business purposes and the use for non-business purposes of any AUTOMOBILE owned by or in charge of the NAMED INSURED and used principally in GARAGE OPERATIONS, and (3) the ownership, maintenance or use of any AUTOMOBILE owned by the NAMED INSURED while furnished for the use of any person.
“ ‘GARAGE OPERATIONS’ means the ownership, maintenance or use of the PREMISES for the purposes of a GARAGE and all operations necessary or incidental thereto;”

Page 2 of Garage Insurance Coverage Part No. 400.

Mr. Kinnon then argues that, because of the ambiguity created by the use of the phrase “GARAGE OPERATIONS,” the court should construe the policy to mean that the garage was “operating” the car by furnishing it to Smith.

Although arguendo the car might have been used for “GARAGE OPERATIONS,” it does not follow that the car was “physically operated” by Thrash-Walters. This same argument was made in Orth v. Universal Underwriters Insurance Company, 284 F.2d 857, 859 (9th Cir. 1960):

“The word ‘operate’ has varying meanings and may include the concept of direction and control through an agent, or may be limited to actual physical control. State Farm Mut. Auto. Ins. Co. v. Coughran, 303 U.S. 485, 491, 58 S.Ct. 670 [672-673], 82 L.Ed. 970. Determination of the meaning to be attributed to the word as used in a particular instrument or statute depends primarily upon the context in which it is used.”

The terms used in one provision are not necessarily limited by their connotation in another. The same word may have a different meaning in one part of a contract than in another, depending on the context. Id. at 860. The root word “operate,” when used in the context of garage operations, refers to business operations, but “physically operated” means “driven” or “manipulated.”

The language of the policy in the case before us is plain and unambiguous. There is no omnibus clause which would cover all permissive users of the automobile. The parties to the insurance contract bargained for the limited coverage which was set out clearly in the policy. Terrell was not the “NAMED INSURED,” and the car was not “physically operated” by the named insured. The policy is not fairly susceptible to a construction which would provide coverage for Willie James Terrell. The trial court was correct in granting the declaratory judgment for the plaintiff. Accordingly, that judgment must be, and is, affirmed.

AFFIRMED.

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


text:
    Ex parte FURNACE AND CORROSIVE SERVICES, INC., et al. (Re MURPHY FURNITURE MANUFACTURING COMPANY, INC. v. TYLER MORGAN & ASSOCIATES, et al.)
    81-190.
    Supreme Court of Alabama.
    Aug. 27, 1982.

      J. Fred Wood, Jr. of Dominick, Fletcher, Yeilding, Acker, Wood & Lloyd, Birmingham, for petitioners.
    Edward R. Jackson of Tweedy, Jackson & Beech, Jasper, for respondents.
   EMBRY, Justice.

This is a petition for a writ of mandamus to compel the trial judge to sever claims made, in an amended complaint, against Furnace and Corrosive Services, Inc., La-Mo Refractory Supply Company, Inc., and J. R. Mauldin, from other claims against other parties in the original complaint filed in this action. We will grant the writ of mandamus in this case.

On 7 April 1978, Murphy Manufacturing Company, Inc., filed suit against the following:

“Tyler Morgan & Associates, Tyler Morgan, individually, Edward Douglas, Industrial Furnace Company, J. Gordon English Company, Inc., Atomic Machine & Welding Co., John Doe, Richard Roe, A & B, Partners doing business under the firm name and style of C Company, Z Corporation, all of whose names are otherwise unknown to plaintiff but will be added by amendment when ascertained but are those defendants responsible for damages for failure to install a properly operable furnace for plaintiff during the period July, 1976 to July, 1977.”

The claims asserted in the original complaint pertain to a series of transactions occurring between 4 July 1976 and 4 July 1977. These transactions concerned the design, manufacture, and installation of the furnace at Murphy. The complaint contains claims based upon breach of implied warranty, both under the Alabama Extended Manufacturers Liability Doctrine and breach of express and implied warranties outside that doctrine, negligence, wantonness, and breach of contract. In that complaint, Murphy sought damages in the amount of $100,000.

On 7 April 1981, Murphy filed an amendment to the original complaint that added the following as defendants:

“La-Mo Refractory Supply Company, Inc., a corporation, J. R. Mauldin, individually, and Furnace & Corrosive Services, Inc., a corporation.”

The amended complaint alleges that in October 1977, Murphy contracted with La-Mo, Mauldin, and Furnace & Corrosive Services, to rework the boiler firebox and dutch oven. Murphy claims the latter defendants did not satisfactorily perform the work contracted to be done by them. The amended complaint seeks additional damages in the amount of $50,000.

On 1 October 1981, La-Mo, Mauldin, and Furnace & Corrosive Services, filed a motion under Rule 21, ARCP, to sever the claims against them contained in the amended complaint from those asserted against the original defendants in both the original and amended complaints. The motion was denied and then this petition for a writ of mandamus was filed.

Generally, the writ will not be granted if the matter complained of can be raised on appeal. The test to be applied in deciding whether mandamus should be granted is whether appeal provides an adequate remedy. See Evans v. Insurance Company of North America, 349 So.2d 1099 (Ala.1977). An appeal would not provide an adequate remedy in this case.

Rule 21, ARCP, allows the severance of any claim or claims against a party who has been misjoined in the action. Such severance may occur either by order of the trial court on motion by any party or by order of the court on its own initiative.

The facts as established by the record clearly reflect that the trial court should have, as a matter of law, granted the motion to sever claims made in the amended complaint against La-Mo, Mauldin, and Furnace & Corrosive Services. There are two separate contracts involved in this case: the original contract for the design, manufacture, and installation of a furnace by defendants other than petitioners; another distinct and separate one, at a later date, for the repair of the boiler firing system by petitioners. An examination of the pleadings alone shows the claims made against La-Mo, Mauldin and Furnace & Corrosive Services, are entirely different from those made against Tyler Morgan & Associates, et al. Also, it appears the transactions occurred in two separate time frames and there is no evidence in the record to show any correlation between the claims made in the original complaint and those in the amended complaint.

Severance of the claims will not prevent Murphy from seeking relief against La-Mo, Mauldin, and Furnace & Corrosive Services in the separate action created by severance of the claims. When a claim is severed from the original action, a new action is thereby established and a completely independent judgment results. Key v. Robert M. Duke Insurance Agency, 340 So.2d 781 (Ala.1976).

Because of the error of the trial court in denying the motion to sever the claims against petitioner from those against the original defendants, a writ of mandamus will issue from this court to require severance of the claims stated in counts seven, eight and nine from the original complaint, pursuant to Rule 21, ARCP, unless within fifteen days from the date of this opinion the trial court severs those claims.

WRIT GRANTED CONDITIONALLY.

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


author: JONES, Justice.

text:
    William G. SWEATMAN and Beatrice O. Sweatman v. FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER FOR SOUTHERN NATIONAL BANK.
    81-296.
    Supreme Court of Alabama.
    Aug. 27, 1982.

      Timothy Gann and Jane de Lissovoy of Birmingham Area Legal Services Corp., Birmingham, for appellants.
    Frank M. Bainbridge of Porterfield, Scholl, Bainbridge, Mims & Harper, Birmingham, for appellees.
    William J. Sullivan, Jr. of Sadler, Sullivan, Sharp & Stutts, Birmingham, for Robert C. McKee, third-party defendant.
   JONES, Justice.

Appellants William and Beatrice Sweat-man instituted this cause in response to a non-judicial foreclosure action against their home by Southern National Bank. The Sweatmans’ prayer for relief sought: 1) to have the mortgage held by Bank against their homeplace declared void, alleging that the signature of one co-signer was a forgery; and 2) a quieting of title to the property in themselves.

Subsequently, Bank was placed into receivership, and the Federal Deposit Insurance Corporation (FDIC) substituted as a party defendant. FDIC impleaded Robert C. McKee, alleging that if the mortgage to Bank were void, then McKee, whose name appeared as a notary thereon, was liable to FDIC for all losses sustained by Bank.

Third-party defendant McKee and the Sweatmans filed motions for summary judgment against FDIC, seeking a determination that a letter agreement from Bank, releasing the Sweatmans’ property from a mortgage upon payment of $15,000.00, was binding upon FDIC. In turn, FDIC sought summary judgment to the effect that it was not bound by the $15,000.00 letter agreement. FDIC counterclaimed against the Sweatmans for the reasonable rental value of their mortgaged property from May 10, 1980, to the date of trial.

On November 13, 1981, the trial court, without a jury, decreed: 1) that the mortgage to Bank did not exhibit a forgery, and that the challenged deed was not tainted with fraud; 2) that the mortgage was not void for lack of proper, material acknowl-edgement; 3) that all claims of the Sweat-mans be denied (except that its decree established the amount due the Bank as $25,-928.99 with interest at 8.5% from May, 1979); 4) that FDIC not be bound by the letter agreement of Bank releasing the Sweatman property for $15,000.00; 5) that FDIC’s counterclaim for rent against the Sweatmans be denied; and 6) because of its holding as to the Sweatmans’ main claim, FDIC’s conditional third party complaint against McKee be dismissed.

The Sweatmans appeal. We affirm.

THE FACTS

The events which culminated in this appeal began in December, 1976, when the Sweatmans owned, subject to a mortgage with the Bowest Corporation of approximately $8,200.00, a homeplace at 1317 Hartford Drive, East Haven Estates, Jefferson County, Alabama. At all times relevant to this cause, the Sweatmans’ daughter, Sandra Stephens, formerly Sandra Kline, was married to Dwight Kline.

At a meeting attended by Kline, Mrs. Sweatman, Sandra, and Mrs. Sweatman’s brother-in-law, J.B. Smith, Kline suggested to Mrs. Sweatman that, because of Mr. Sweatman’s prolonged problem with drinking, she convey title in their homeplace to Sandra. Kline’s explanation for urging such a transfer was the uncertainty, caused by Mr. Sweatman’s addiction, whether, in the event of a fire at their home, remuneration from their insurance carrier would be forthcoming.

Immediately thereafter, Kline accompanied the Sweatmans to the offices of the real estate firm of Garner and Grabowski, where they met with the office manager, Ms. Billy Brake. In the presence of the Sweatmans, and pursuant to Kline’s instructions, Ms. Brake prepared a deed transferring title in the Sweatmans’ home-place to Dwight and Sandra. The deed, along with other papers relating to the transfer, was signed by the Sweatmans and notarized by Ms. Brake.

In the summer of 1977, the relationship of Dwight and Sandra Kline was beset with conjugal disharmony. On August 16, 1977, Kline, Sandra, and Sandra’s uncle, J.B. Smith, after meeting at the Kline home, visited the law offices of Robert McKee. Expressing their desire to obtain a divorce, Kline and Sandra proffered to McKee a self-composed, handwritten property settlement agreement witnessed by Smith which, according to McKee, they were very anxious to sign.

Under the agreement, Sandra kept an automobile, household furniture, and jewelry owned by her prior to the marriage. Kline transferred his newly-acquired interest in the Sweatman property back to Sandra, and satisfied a then outstanding first mortgage on the same realty to the Bowest Corporation. In return, Sandra consented to Kline’s placing a $15,000.00 mortgage on the Sweatman property (solely owned by her after the divorce) for a loan he was to obtain from Bank, the obligation for which was assumed by Sandra. Kline obtained title to a house which, prior to their marriage, had belonged to Sandra. In return, Sandra rented a third home from Kline. The property settlement papers, and other documentation necessary for the divorce, were signed by Kline and Sandra, in the presence of McKee and J.B. Smith.

■ A divorce decree, incorporating the property settlement agreement, was granted on August 17, 1977. In September of 1977, Kline obtained a loan from Bank of approximately $35,000.00, the collateral being two second mortgages on houses other than the Sweatmans’, owned by Kline. A second loan was made to Kline by Bank on September 14, 1977, for approximately $32,-000.00. As security for this advance, Bank took a mortgage on two parcels of real property, including the Sweatman home-place at 1317 Hartford Drive. Out of the proceeds of the second loan, Bank paid to Bowest Corporation $8,327.48 in full satisfaction of the then outstanding first mortgage on the Sweatman realty.

In connection therewith, Kline requested and received from Bank a letter agreeing to release the mortgage against 1317 Hartford Drive upon payment to Bank of $15,000.00. (This agreed-upon payment was neither made nor tendered, and the trial court’s ruling in this regard is not raised as an error on appeal.) The mortgage securing the second loan was signed by Sandra and Kline, and acknowledged by McKee on September 15, 1977.

After the Sweatmans’ deed to Sandra and Kline, Mrs. Sweatman continued remitting to Bowest, holder of the first mortgage, $106.40 per month. Beginning in and continuing throughout 1977, per Sandra’s instructions, Mrs. Sweatman made these monthly payments directly to Sandra. Thereafter, through March, 1979, Mrs. Sweatman’s monthly checks increased to $134.00. Mrs. Sweatman first learned about the terms of the divorce decree putting title to her home in Sandra and subjecting the dwelling to a $15,000.00 mortgage with payments of $134.00 per month rather than $106.40 a month (the Bowest mortgage) on or about October 24, 1977, when she read the property settlement agreement.

Kline failed to repay either of the two loans. In March of 1979, he was arrested by federal authorities for parole violations unrelated to these proceedings. Immediately thereafter, the Sweatmans ceased making their $134.00 monthly payments; whereupon Bank initiated foreclosure proceedings against the property.

ORE TENUS STANDARD OF REVIEW

The trial judge, sitting without a jury, made, among others, the following findings of fact in his final decree:

“(1) The plaintiffs have failed to reasonably satisfy the court ... that the deed dated December 20, 1976, executed by them . . . was procured by fraud or that their signatures thereon are forgeries.
“(2) The real estate mortgage executed by Dwight W. Kline and Sandra Faye Kline to the Southern National Bank ... is not a forgery of the signature of Sandra Faye Kline nor was the said mortgage procured by fraud upon the said Sandra Faye Kline.... [T]he said mortgage is not void for lack of, or because of, an improper acknowledgement.”

A strong presumption as to the correctness of the trial court’s findings of fact exists on appeal, and these findings should not be disturbed unless they are unsupported by the evidence or found to be clearly erroneous and against the great weight of the evidence. Cougar Mining Co. v. Mineral Land & Mining Consultants, Inc., 392 So.2d 1177 (Ala. 1981); Raidt v. Crane, 342 So.2d 358 (Ala. 1977); Adams Supply Co. v. United States Fidelity & Guaranty Co., 269 Ala. 171, 176, 111 So.2d 906 (1959). See, also, Moore v. Lovelace, 413 So.2d 1100 (Ala. 1982).

Contrary to vigorous assertions by counsel for the Sweatmans, we fail to elicit from our review of the record any clouds of impropriety surrounding either the December 20, 1976, deed to Sandra and Kline, or their co-signed mortgage to Bank on the Sweat-mans’ homeplace. Consequently, pursuant to the standard of ore ten us review, we afford credence to the trial judge’s findings, and deem any further discourse regarding this issue to be superfluous.

THE SWEATMANS’ HEARSAY OBJECTIONS

The Sweatmans cite as error the trial court’s ruling excluding certain testimony of their daughter Sandra. Specifically, the trial judge sustained Bank’s objections to her testimony about what Dwight Kline is alleged to have said in the presence of Mrs. Sweatman, Sandra, and J.B. Smith, concerning the issue of Mr. Sweatman’s drinking and foreseeable problems with the Sweatmans’ fire insurance. The trial judge excluded such testimony on grounds that it was hearsay.

An error in excluding evidence is harmless where it is admitted at another time or in another form. In Jemison v. Belcher, Ala., 368 So.2d 849, it is stated:

“We cannot agree that the trial court’s refusal to admit into evidence testimony regarding the cutting of timber was reversible error. The same evidence sought to be elicited from the defendant was established by the testimony of another witness who testified that defendant had cut trees within the disputed area. Thus, if its exclusion was error, it was harmless since such evidence was otherwise admitted during trial. Chambers v. Culver, 289 Ala. 724, 272 So.2d 236 (1973); McLemore v. Alabama Power Company, 289 Ala. 643, 270 So.2d 657 (1972).” Jemison, at 389 So.2d 850. (Emphasis supplied.)

We note from the record that both J.B. Smith and Mrs. Sweatman testified in detail concerning the meeting at which Kline is alleged to have fraudulently persuaded Mrs. Sweatman to release title in her home-place to Sandra. In this light, we pretermit any determination as to whether Sandra’s proffered testimony was hearsay, or escaped such prohibition by not being offered to prove the truth of the matter asserted. It is difficult to comprehend what additional facts, if any, Sandra might have adduced as having transpired at the meeting.

For the sake of clarity, we make one further observation: The harmless error rule of Jemison is not to be taken as an absolutism. That is to say, the mere fact that the same evidence sought to be elicited from the witness was adduced through other witnesses does not automatically, and of itself, render the trial court’s refusal of such evidence harmless error. The trial judge does not have unlimited discretion to refuse admission of cumulative testimony; nor will he be spared reversal on harmless error grounds where he bars the testimony of a witness solely because the fact sought to be proved by the proffered testimony has already been established by the testimony of another witness. The harmless error rule must be tested by the circumstances of each individual case.

Where, as here, the objective or historical facts are not in dispute, and the asserted purpose of the proffered evidence does not extend beyond, or tend to prove, other inferences of disputed ultimate facts, the proffered testimony is purely cumulative; and, although admissible, its exclusion will not form the basis for reversible error. The ultimate disputed fact which Plaintiffs sought to prove by this testimony was that the Sweatmans’ deed to the Klines was fraudulently induced. The undisputed objective or historical fact from which, according to Appellants’ contentions, the trial court, as factfinder, could reasonably infer such ultimate fact, was Klein’s statement regarding the necessity or desirability for the conveyance by the Sweatmans to him and his wife. Assuming, without deciding, that the hearsay issue should be resolved favorably to Appellants, we hold that the proffered testimony was cumulative, at best; and any error associated with its exclusion was harmless and not a sufficient basis for reversal.

The evidence of record in the instant case clearly supports the trial court’s findings of fact; and the judgment, therefore, is due to be, and hereby is, affirmed.

AFFIRMED.

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

      . There are two primary conveyances at issue on this appeal: (1) a deed from the Sweatmans to Dwight and Sandra Kline; and (2) a mortgage to Bank on the .Sweatmans’ homeplace signed by Dwight and Sandra Kline.

      . The amount specified as due Bank each month per the $15,000.00 mortgage, delineated in the parties’ property settlement agreement and incorporated by their divorce decree.


text:
    Bertie Lee MARTIN, et al. v. David Wayne LANCASTER, et al.
    81-320.
    Supreme Court of Alabama.
    Aug. 27, 1982.

      Myron K. Allenstein, Gadsden, for appellants.
    Curtis Wright of Dortch, Wright & Russell, Gadsden, for appellees.
   EMBRY, Justice.

This is an appeal from a judgment adverse to the plaintiffs below, Bertie Lee Martin and Jasper Daniel Martin. That judgment was entered upon a jury verdict in an action seeking damages for injuries suffered in an automobile accident.

The alleged errors asserted by the Martins are:

(1) The trial court erred by preventing the cross-examining party from asking a witness what he told' a third party, the witness’s wife, about the accident.

(2) The trial court erred by preventing the cross-examining party from showing bias of a witness who was indirectly connected to the insurance carrier of one of the parties.

After careful review of the record, we find no error on the part of the trial court in connection with the rulings about which appellants complain. The verdict of the jury is amply supported by the evidence. This appeal is totally without merit.

Therefore, the judgment is due to be and is hereby affirmed.

AFFIRMED.

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


author: PER CURIAM.

text:
    Griel D. SMITH, et al. v. Thomas Vernon SMITH, et al.
    81-350.
    Supreme Court of Alabama.
    Aug. 27, 1982.

      John E. Byrd of Byrd, Carter & Smith, Dothan, for appellants.
    H. Edward McFerrin of Poole & Poole, Greenville, for appellees.
   PER CURIAM.

Plaintiffs, Griel D. Smith, Ruby Jackson, Etheleen Gibson, Clarence Smith, Glenn Jack Smith, Carl 0. Smith and Leo Smith, appeal from a grant of defendants’ motion for summary judgment by the Circuit Court of Butler County, in a civil action filed against defendants, Thomas Vernon Smith, Willie Mack Smith and Myra Till.

Plaintiffs and defendants are the children of Perry Smith and Katie Lou Smith. On September 1, 1951, Crawford A. Lowery and Clodean Lowery conveyed to Perry Smith and Katie Lou Smith 60 acres of land in Butler County. The granting clause in the deed did not contain words of inheritance, but the habendum clause contained language providing for concurrent ownership with rights of survivorship.

Perry Smith died in 1973, leaving no will, and there was no administration of his estate. On April 13, 1977, Mrs. Smith executed a deed purporting to convey 20 acres of the property to Thomas Vernon Smith in which she retained a life estate in the dwelling house on said property, and she executed a deed to 40 acres of the property to Willie Mack Smith. Both Thomas Vernon Smith and Willie Mack Smith have built homes on the land. Katie Lou Smith died in January of 1980, and there was no administration of her estate.

Plaintiffs allege that their mother, Katie Lou Smith, owned only an undivided one-half interest in the property she conveyed and that the other children, plaintiffs and defendants in this action, owned the remaining undivided one-half interest in the 60 acres. Accordingly, they say Katie Lou Smith could not convey to Willie Mack Smith and Thomas Vernon Smith the entire fee in the property. Plaintiffs asked the trial court to determine the ownership of the one-half interest in question, sell it, and divide the proceeds among the joint owners.

Plaintiffs’ allegation that their mother owned only a one-half interest in the property she conveyed is founded upon the claimed conflict and ambiguities in the granting and habendum clauses in the deed from Crawford A. Lowery and Clodean Lowery to Perry Smith and Katie Lou Smith. Plaintiffs claim that the granting clause conveyed a fee simple estate in co-tenancy by implication of law based on the provision of Code of Ala. 1975, § 35-4-2, and that the habendum clause attempted to change the estate conveyed from a fee simple estate in cotenancy in the granting clause into a joint tenancy during the grantees’ lives with the remainder to the survivor in fee simple. Plaintiffs (as well as defendants) would, by right of descent and distribution, receive a share of their father’s interest in the land if it were found to be an estate in cotenancy. They, therefore, argue that the granting clause should be given greater weight than the habendum clause in determining what estate the Low-erys intended to convey.

The deed in question reads:

Granting Clause
“... we, Crawford A. Lowery and wife, Clodean Lowery, do hereby grant, bargain, sell, and convey unto the said Perry Smith and Katie Lou Smith, the following described real property situated, lying, and being in the County of Butler and the State of Alabama, viz: [Description].” (Emphasis added.)
Habendum Clause
“TO HAVE AND TO HOLD the above described real property unto the said Perry Smith and Katie Lou Smith during their joint lives, and upon the death of either of them, then to the survivor of them in fee simple forever....” (Emphasis added.)

Plaintiffs further contend that the affidavits and depositions of the Lowerys must also be considered in the construction of the deed since they clearly indicate that the grantors did not intend to convey a surviv-orship title to the Smiths.

Two issues are presented. First, what estate was conveyed by the deed of September 1, 1951; second, did the parol evidence of Crawford A. Lowery and Clodean Lowery raise a sufficient question of fact to make the circuit court’s grant of summary judgment for defendants improper.

We cannot agree with plaintiffs’ contention that the estate created by the 1951 deed was a fee simple cotenancy of which Perry and Katie Lou Smith each owned an undivided one-half interest and that the estate was not one of joint tenancy with right of survivorship. The provisions of Code 1975, § 35-4-2, must be read and considered in conjunction with § 35-4-7. Section 35-4-2 provides:

“Every estate in lands is to be taken as a fee simple, although the words necessary to create an estate of inheritance are not used, unless it clearly appears that a less estate was intended.’’ (Emphasis added.)

Section 35-4-7 states:

“. .. provided, that in the event it is stated in the instrument creating such tenancy that such tenancy is with right of survivorship or other words used therein showing such intention, then, upon the death of one joint tenant, his interest shall pass to the surviving joint tenant or tenants according to the intent of such instrument....’’

The habendum clause of the deed before this Court explicitly provides that the property was conveyed to “Perry Smith and Katie Lou Smith during their joint lives, and upon the death of either of them, then to the survivor of them in fee simple forever.” This is precisely the language necessary to establish a concurrent ownership as joint tenants with right of survivorship under Code 1975, § 35-4-7. Thus, it appears from the habendum clause that a less estate —or, more precisely, a different estate— was intended.

Plaintiffs also argue that there was a conflict between the granting clause which, by its silence as to the specific estate conveyed and by implication of § 35 — 4—2, granted to Perry and Katie Lou Smith each an undivided one-half interest in fee simple, and the habendum clause, which provided for a concurrent ownership as joint tenants with right of survivorship. This Court in Willis v. James, 287 Ala. 653, 659, 254 So.2d 717, 722 (1971), quoted Henry v. White, 257 Ala. 549, 552, 60 So.2d 149, 152-53 (1952), which stated:

“If the granting clause does not expressly designate the estate conveyed, and there is nothing in the other parts of the deed to indicate the estate intended to be conveyed, the provisions of Title 47, § 14, Code 1940, [now § 35-4-2] have application. Said section reads: ‘Every estate in lands is to be taken as a fee simple although the words necessary to create an estate of inheritance are not used, unless it clearly appears that a less estate was intended.’ * * *
“But where the granting clause does not expressly designate the estate conveyed, and the other clauses indicate the nature and character of the estate conveyed, there is no room for the operation of the provisions of law now codified as § 14, Title 47, Code 1940.”

We hold that the language of the haben-dum clause clearly indicates the nature and character of the estate conveyed and reflects the requisite intention to convey a joint tenancy with right of survivorship under § 35-4-7.

Plaintiffs also argue that they met their burden of proof of raising a genuine issue as to a material fact by producing the parol evidence of the Lowerys and that, therefore, the circuit court’s grant of summary judgment for defendants was improper under Ala. R. Civ. Proc. 56(c) and (e). The fact with which the affidavits and depositions of the Lowerys conflicted was that of intention. The Lowerys stated in deposition that the word “survivorship” was never mentioned before the deed was prepared and that they [the Lowerys] did not intend to give the Smiths any particular kind of deed. Mrs. Lowery did, however, say, “I thought all deeds were made to husband and wife and then should something happen, it would go to their children.” While this language indicates that a fee simple estate in cotenancy was intended, the deed, in fact contained the survivorship provisions. This Court in Willis, 287 Ala. at 659, 245 So.2d at 722, held:

“The real inquiry in the construction of a deed is to establish the intention of the parties, especially that of the grantor; but a corollary to this rule is that the intention must, if possible, be gathered from the language used in the instrument submitted for construction and that, when it can in this way be ascertained, arbitrary rules are not to be applied. * *” (Emphasis added.)

We must also consider plaintiffs’ contention in light of this rule of construction:

“In ascertaining the intention of the parties, the plain and clear meaning of the deed’s terms must be given effect, and parties must be legally presumed to have intended what is plainly and clearly set out.”

Financial Inv. Corp. v. Tukabatchee Area Council, Inc., Boy Scouts of America, 353 So.2d 1389, 1391 (Ala. 1977). (Emphasis in original.) See also, Martin v. Smith, 404 So.2d 341, 344 (Ala. 1981); Federal Land Bank v. Terra Resources, Inc., 373 So.2d 314, 319-20 (Ala. 1979).

In Hunter v. Austin Company, 336 So.2d 203 (Ala. Civ. App. (1976), cert. denied, 336 So.2d 208 (Ala. 1976), our Court of Civil Appeals held that facts presented which attempted to vary the terms of a written contract by parol evidence and which were inadmissible to vary the terms of the writing were not sufficient to raise an issue of material fact sufficient to defeat summary judgment. That court at page 206 said:

“Affidavits in support of a motion for summary judgment may set forth only such facts as would be admissible in evidence. Rule 56(e) ARCP and comments thereto. Generally, when the parties to a contract reduce their agreement to writing, that writing becomes the sole expositor of the transaction. In the absence of fraud, mistake or ambiguity parol evidence is not admissible to vary the terms of the writing.”

Since no ambiguity exists, given the clear language of the habendum clause of the deed, and since plaintiffs did not allege fraud or mistake, the parol evidence of the Lowerys was not admissible to vary the terms of the writing.

In keeping with the above conclusions, we find that the circuit court did not err in granting summary judgment in favor of Thomas Vernon Smith and Willie Mack Smith and in denying the summary judgment requested by Griel D. Smith and the other plaintiffs.

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    G. D. WEBB v. Jeanette RAMSEY.
    81-444.
    Supreme Court of Alabama.
    Aug. 27, 1982.
    Charles A. Dauphin of Baxley, Beck & Dillard, Birmingham, for appellant.
    Tom Radney, Alexander City, and John Rochester, Ashland, for appellee.
   FAULKNER, Justice.

This is an appeal from an order denying Webb’s motion for a new trial and directing a verdict in favor of Ramsey in an action brought by real estate agent Webb to recover commissions for (1) the sale of real estate and (2) for obtaining a lease on a separate piece of property. We affirm.

In September, 1978, G. D. Webb talked to Jeanette Ramsey at her home. Initially they discussed Mr. Webb’s finding a lessee for some real property owned by Ms. Ramsey, and she agreed to a minimum price term of $600.00 a month with a ten percent commission for Mr. Webb, a total of $660.00 a month. Mr. Webb stated that he had a lessee ready, willing and able to lease the property and that Ms. Ramsey owed him a commission, even though the lease was never consummated. There was conflicting evidence that Ms. Ramsey stated to Mr. Webb at the first meeting that any lease agreement would have to be approved by her lawyer. Be that as it may, Ramsey did not sign the lease, and she did not accept the terms of the lease. •

At that same meeting, Mr. Webb and Ms. Ramsey discussed the sale of another tract of land, but they did not discuss a commission agreement at that time. Mr. Webb placed a “For Sale” sign on the property displaying his name and phone number. Ms. Ramsey contacted her tenants and told them that Mr. Webb might show the property to prospective buyers. Ms. Ramsey subsequently sold the property herself to an adjoining landowner. Mr. Webb asserted that an adjoining landowner called him concerning the property, but he didn’t remember the caller’s name. He stated also that he had found another buyer for the property-

The trial judge granted Ramsey’s motion for a directed verdict at the close of evidence on the issue of a commission for the sale of the real estate. The jury returned a verdict in favor of Ramsey on the issue of a commission for obtaining a lease on the separate piece of property. The trial judge denied Webb’s motion for a new trial.

The owner of real property who employs a broker to sell it or produce a buyer for it retains the right to sell the property himself unless the broker’s contract in some way or other imposes liability upon the owner for such a sale. The contract may impose the liability either expressly or by the grant to the broker of such exclusive right as the court may deem necessarily implies liability. Moreno v. May, 280 Ala. 157, 159, 190 So.2d 710, 712 (1966) (quoting Annot., 88 A.L.R.2d 940 (1963)). We find no such liability imposed in the present case.

The following are excerpts from the trial transcript which formed part of the record on appeal:

Mr. Radney: “The fact that she sold it, before you sold it for her, she had the right to do.
Mr. Webb: “She had the right to do.
Mr. Radney: “Mr. Webb, I apologize for repeating, I am confused, maybe the Jury is not. Since you did not have the exclusive listing on the two acres to sell, the owner had a right to sell it herself.
Mr. Webb: “That’s right.
Mr. Radney: “She had a right to do that, and your answer is that you are not entitled to a commission there, is that correct?
Mr. Webb: “That’s right.”

(R. 149-52).

Because of the admission of Webb that he was not entitled to a commission, the jury could not have returned a verdict in his favor. Even assuming arguendo that there was a breach of contract, Webb introduced no evidence or testimony of what would be a reasonable commission. The parties never discussed a commission agreement or fee with respect to the sale property. They agreed on a ten percent commission for the lease property, but these were two separate transactions. Webb failed to provide evidence from which a jury could form a basis for determination of damages. The law is settled that where by the undisputed evidence the plaintiff has not shown that he is entitled to recover on a complaint, the trial court may direct a verdict for the defendant. Cox v. Howard Hall Co., Inc., 289 Ala. 35, 37, 265 So.2d 580, 581 (1972).

Webb also alleges that the jury verdict concerning the property for lease is palpably wrong and manifestly unjust. After a careful review of the record in this case, we are convinced that the evidence in the record amply supports the judgment entered on the jury verdict. The evidence shows that, as to the lease, there was never a meeting of the minds of Webb and Ramsey. The only term they ever agreed to was the commission—10%. We cannot say that the judgment appealed from is clearly wrong and manifestly unjust.

AFFIRMED.

TORBERT, C. J., and ALMON, EMBRY and ADAMS, JJ., concur.