proximately resulted from a breach of a contract to supply water, when it is known to both parties that the purpose of the contract is to provide against fires, is not here questioned. As authority for the proposition, the case of Paducah Lumber Co. v. Paducah Water Supply Co. (Ky.) 12 S. W. 554, 13 S. W. 249, 7 L. R. A. 77, 25 Am. St. Rep. 536, is in point.

Ordinarily, where one party to a continuing contract refuses to perform his part of it, the other party may treat the contract as ended; and though there are exceptional cases, this principle is in general applicable where the default consists in a failure to pay an installment for services or goods to be furnished from time to time. Drake v. Goree, 22 Ala. 409; South Fork Canal Co. v. Gordon, 6 Wall. 561, 18 L. Ed. 894; Dobbins v. Higgins, 78 Ill. 440; Bean v. Miller, 69 Mo. 384. A water company, though exercising quasi public functions in supplying the public, may avail itself of this principle, and may reasonably require payment in advance, and may also, unless under exceptional circumstances, enforce the requirement by cutting off the supply for noncompliance therewith by the consumer. Tacoma Hotel Co. v. Tacoma Light & Water Co. (Wash.) 28 Pac. 516, 14 L. R. A. 669, 28 Am. St. Rep. 35, and authorities therein cited.

The contract, by its last clause, provides a way for its termination at the pleasure of either party; but that provision was not intended to affect the right of either to insist on full performance by the other, or to stop performance for the other party's default. Being by its terms so terminable at will after the first year, the contract cannot be construed as running from year to year thereafter, or as committing defendant to its performance during the year 1897, merely by delaying to act on plaintiffs' alleged default until April of that year. Assuming that, as averred in defendant's pleadings, the payments were to have been in advance, defendant's recovery by suit of the installment covering the period between November 1, 1896, and May 1, 1897, was not, as a legal conclusion, effective to preclude defendant from maintaining here its asserted right to stop supplying the fire hydrant during that period. The doctrine applied in Caldwell v. Smith, 77 Ala. 157, Hill's Adm'r v. Huckabee's Adm'r, 70 Ala. 183, and Hodges v. Winston, 95 Ala. 514, 11 South. 200, 36 Am. St. Rep. 241, which prevents a party who has taken a position giving him an advantage over his adversary from afterwards changing ground to the latter's prejudice, cannot be here applied. This for the reason that the stipulation for payment in advance was independent of that for supplying the water, and prima facie entitled defendant to sue immediately upon default in payment, and to recover without proof of its performance, or of further continuance of the contract. Drake v. Goree, 22 Ala. 409. Defendant could have been put to such proof by a counterclaim for failure to supply water

during the period in question, but, so far as appears, no phase of that suit exhibits the defendant as asserting therein anything necessarily inconsistent with its present attempt to justify the alleged breach. At the time the water was turned off, the contract had been so far executed that it could have been rescinded by an agreement only. Defendant's privilege extended no further than to treat it as ended. The term "rescinded," as used in some of the pleas, was inaptly employed in their averments of what was actually done by defendant; but the same pleas having each averred other facts sufficient to avoid the complaint, they were not vitiated or rendered subject to the demurrers by their averments of rescission.

These considerations lead to the conclusion that the trial court's rulings on pleadings were free from error. Looking to the evidence, there appears a conflict as to whether the water rent was really payable in advance. The written agreement is silent as to whether it was payable at the first or at the end of the installment period. To show it payable in advance, it devolved on defendant to prove an additional agreement so providing; and such an agreement it undertook to establish as having been made between its superintendent and one of plaintiffs in January, 1896. Its evidence of the latter agreement was, however, contradicted by the testimony of the plaintiffs; and because of this conflict the ascertainment of that disputed fact belonged to the jury alone. The trial court's action in excluding the whole of plaintiffs' testimony and in giving the affirmative charge requested by defendant made errors which necessitate a reversal. Evidence objected to relating to transactions had by the parties under the contract was properly received as tending to reveal the understanding of the parties re specting the time for payments, and as tending to show whether payments were in ar

rears.

Reversed and remanded.

RICHTER v. KOOPMAN et al. (Supreme Court of Alabama. Dec. 18, 1901.) TERM OF COURT-EXPIRATION-SUNDAY-PRE

SUMPTION-BILL OF EXCEPTIONS-SUF-
FICIENCY OF RECORD.

1. Where an order adjourning court provides that it be reconvened on Monday, December 4th, and held for two weeks, and nothing appears to the contrary, the term will be presumed to have ended on Saturday, December 16th.

2. A bill of exceptions not signed until the day after expiration of the period allowed by law is insufficient as a basis for assignment of

error.

3. A record entry purporting to be the clerk's mere recital of the court's action in sustaining a demurrer to a complaint does not show a sufficient judgment to sustain an assignment of

error.

Appeal from circuit court, Cullman county: H. C. Speake, Judge.

Action by William Richter against Koopman & Gerdes. Judgment for defendants, and plaintiff appeals. Affirmed.

T. M. Wilhite, for appellant. George H. Parker, for appellees.

SHARPE, J. As bearing on the motion to strike the bill of exceptions from the record, the controlling facts are as follows: The case was tried at an adjourned term of court provided for by an order made at the fall term of the circuit court directing that the court be reconvened on the first Monday (4th day) of December, 1899, and be held for two weeks. Thereat an order was made extending time for signing the bill of exceptions 60 days from adjournment of court, and afterwards, by order of the judge, this period was extended for 30 days. The bill of exceptions was signed on March 17, 1900. No entry in the transcript discloses when the term was actually adjourned. The last day of the two calendar weeks beginning the first Monday in December being Sunday, the day previous was the last juridical day of the two weeks' term ordered, and nothing appearing to the contrary, it is presumed the term did not continue longer than the end of Saturday, December 16th. Davis v. Fish, 1 G. Greene, 406, 48 Am. Dec. 387. Beginning at the end of the term, the 90 days added by extensions expired with March 16, 1900. A bill of exceptions not signed until the day after expiration of the period allowed by or pursuant to law is not legally authenticated, and on appeal is ineffectual as a basis for assignment of error. Loosse v. Vogle, 80 Ala. 308. The motion to strike must therefore be granted. Besides the assignments of error based on rulings which could only have been reviewed on a bill of exceptions, there are none except those based on record entries assumed to be judgments sustaining demurrers to the complaint. Those entries purport to be the clerk's mere recitals of the court's action, such as under many decisions of this court lack the essentials of a judgment, and are insufficient to support assignments of error. Cartlidge v. Sloan, 124 Ala. 596, 26 South. 918; Hereford v. Combs, 126 Ala. 369, 28 South. 582; Crawford v. Crawford. 119 Ala. 34, 24 South. 727; Mercantile Co. v. O'Rear, 112 Ala. 247, 20 South. 583; Carter v. Long (Ala.) 28 South. 74. The judgment must be affirmed.

SOUTHERN RY. CO. v. PLOTT. (Supreme Court of Alabama. Nov. 27, 1901.) RAILROADS-DEFECTIVE BRIDGES-OVERFLOWING LANDS-LIABILITY.

1. In the location and construction of bridges and trestles, a railroad company is required to bring to the work the engineering skill and knowledge generally known and applied in business, having regard to the size and nature of the stream, the character and features of the adjacent country which constitutes its water31 So.-3

shed, the relative position and formation of the abutting land, its liability to overflows, and their probable extent and effect; but is not bound to provide against unusual or extraordi nary floods, such as have never been known to occur before, and which could not reasonably have been anticipated by competent and skillful engineers.

2. In an action against a railroad company to recover damages resulting from an overflow, alleged to have been caused by the negligence of the defendant in failing to leave a sufficient opening in a trestle for the passage of the waters of a creek in times of flood, where the evidence tends to show that the overflow was caused by an unusual rainfall, which washed logs and timbers and débris against the trestle, a charge is properly refused which instructs the jury that if they "believe from the evidence that there had been rains of as great magnitude before, and that the overflow, in this instance, was caused by the choking up of the water way under the trestle by timbers, brush, and other débris, which were not left lying in the path of the stream by the negligence of the defendant, they must find for the defendant."

3. In such a case, a charge is properly refused which instructs the jury that if they "believe from the evidence that there had been rains of as great magnitude before, and that the overflow was caused, in this instance, by the choking of the water way under the trestle by timbers, brush, and other débris, which were not left lying in the path of the stream by the negligence of the defendant, they cannot find for the plaintiff."

over

4. In an action against a railroad company to recover damages resulting from an flow, alleged to have been caused by the defective construction of an embankment over a creek, where the evidence shows that the tracks of the defendant were washed away upon the occasion in question, at the place where the injuries were caused, it is not competent for the defendant to prove that there were other points along the line of its road in the same county that were damaged by reason of the same heavy rainfall.

Appeal from circuit court, Lamar county, S. H. Sprott, Judge.

Action by W. H. Plott against the Southern Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

This action was brought to recover damages for injuries to a stock of goods owned by the plaintiff, which was caused by an overflow, which flooded the plaintiff's store wherein the goods were, and which was alleged to have been occasioned by an embankment constructed by the defendant across a creek. The complaint contained two counts. In the first count the negligence alleged was that the defendant, in constructing a trestle across a creek which ran near the plaintiff's storehouse, negligently failed to construct, maintain, and leave open a sufficient channel under said trestle for the passage of the waters of said creek; that the defendant had made the natural channel narrower, and thereby obstructed the flow of the water; and that, as a result, during a heavy rainfall, water was backed up from said trestle and embankment so constructed by the defendant, and flooded the plaintiff's store causing the injuries complained of. In the second count the negligence complained of was that the "defendant negligently failed to place, leave, construct, and keep in its said railroad track

and through said embankment, for the escape and passage of water during rainfall, such opening as was necessary, and closed up the original and natural outlet of said creek, although the defendant had notice of such defect before the injury here complained of"; and that, by so negligently closing up the natural channel and obstructing the flow of the water during a heavy rainfall, the waters of the creek were backed up from the trestle, and flooded the store of the defendant, causing the injury complained of. The cause was tried upon issue joined on the plea of the general issue. The evidence for the plaintiff tended to show that, in the construction of the trestle across the creek which ran near the plaintiff's store, the railroad company had filled up a portion of the natural channel of the creek by an embankment; that the opening or channel left open under the trestle was much narrower than the natural channel, and was insufficient to carry off the waters of the creek after a heavy rainfall; that in the construction of the trestle over said creek there was put in the channel supports for said trestle, which were variously estimated to be from 7 feet to 14 feet apart, and that this had not left an opening sufficient to carry the débris down the creek after a heavy rainfall; that at the time specified in the complaint, there was a very heavy rainfall, and that, by reason of the channel of the creek being partially closed up, in the construction of the trestle, the waters of the creek backed up from said trestle, and flooded the plaintiff's store, causing the damages complained of. There was evidence introduced for the plaintiff tending to show that at a previous time, during a heavy rainfall, the channel left open under the trestle in question was not sufficient to carry off the water, and the embankment of the defendant was partially washed away. The evidence for the defendant tended to show that the trestle built across the track in question was sufficient for the carrying off of the waters from usual rainfalls; that at the time complained of by the plaintiff the rainfall was the heaviest known in that section of the country for many years; that, by reason of so unusual a rainfall, logs, fences, and houses were washed away and floated down the creek until they got to the trestle, and there formed a jam, which caused the waters of the creek to be backed up from the trestle to the plaintiff's store, and also washed the tracks of the defendant from off its embankment. The evidence for the defendant further tended to show that but for the unusual rainfall, which caused unusual débris to be brought down the stream, the water would not have backed up and flooded the store, but that the channel under the trestle would have been sufficient to have carried off the water. It was further shown by the evidence that the defendant in the present suit purchased the railroad in question from the Richmond & Danville Railroad Company, and that the trestle was in the same condition at the time

in question as it was when the defendant purchased said road. During the examination of one Jemison, as a witness for the defendant, and after he had testified that he was section foreman of that portion of the defendant's road where the accident happened, and had been in charge of the trestle, he was asked to tell the jury "what other points along the road in the county of Lamar that same night were damaged that had never been damaged up to that time." The plaintiff objected to this question, upon the ground that it called for incompetent and immaterial evidence, the court sustained the objection, and to this ruling the defendant duly excepted. The defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: "(1) If the jury believe the evidence they must find for the defendant. (2) If the jury believe the evidence thy cannot find a verdict for the plaintiff under the first count of the complaint. (3) If the jury believe the evidence they cannot find a verdict for the plaintiff under the second count of the complaint." (9) "If the jury believe from the evidence that there had been rains of as great magnitude before, and that the overflow, in this instance, was caused by the choking up of the water way under the trestle by timbers, brush, and other débris, which were not left lying in the path of the stream by the negligence of the defendant, they must find for the defendant. (10) If the jury believe from the evidence that there had been rains of as great magnitude before, and that the overflow was caused, in this instance, by the choking of the water way under the trestle by timbers, brush, and other débris, which were not left lying in the path of the stream by the negligence of the defendant, they cannot find for the plaintiff." There were verdict and judgment for the plaintiff, assessing his damages at $300.

Smith & Weatherly, for appellant. W. A. Young, for appellee.

SHARPE, J. In the construction and maintenance of railroads common prudence requires the employment of at least ordinary engineering knowledge and skill, to the end of avoiding injury to property which will probably come from the obstruction of natural streams and water ways. While those engaged in such undertaking are not bound to provide against floods of which the usual course of nature affords no premonition, yet they are bound to use ordinary care to build so as not to obstruct to the damage of others rainfalls such as may reasonably be expected, whether they are likely to be of frequent or of rare occurrence. Railroad Co. v. Bridges, 86 Ala. 453, 5 South. 864, 11 Am. St. Rep. 58; Railway Co. v. Gilleland, 56 Pa. 445, 94 Am. Dec. 98; Railway Co. v. Pomeroy, 67 Tex. 498, 3 S. W. 722; Railroad Co. v. Halloren, 53 Tex.

46, 37 Am. Rep. 744; Brown v. Railroad Co. (Pa.) 38 Atl. 401, and notes. A structure which dams up a water way and causes the water to spread dangerously from its natural course may amount to a nuisance, and the maintenance, as well as the erection of a nuisance, with knowledge of its harmful character, may create a liability for resultant injuries. Conhocton Stone Road Co. v. Buffalo, N. Y. & E. R. Co., 51 N. Y. 573, 10 Am. Rep. 646; Dickson v. Chicago, R. I. & P. R. Co., 71 Mo. 575. Though the defendant acquired the railroad after the embankment complained of was built, its character, and that of the stream and surrounding country, together with common knowledge with which it was legally charged, concerning rainfalls to which the country was subject, may have been sufficient to show it had notice of the consequences which would naturally follow from continuing the existing conditions. There was

evidence introduced on the trial sufficient to warrant the jury in finding defendant liable in damages as alleged in each count of the complaint, and which necessitated the refusal of charges 1, 2, and 3.

Not infrequently the drifting of timbers is incident to a flood; and where there are loose timbers along a stream due care in the construction or maintenance of a trestle may call for plans and methods to prevent their lodgment, and so prevent them from obstructing the water. Charge 9 refused to defendant improperly pretermitted inquiry as to defendant's fault in this respect, and charge 10 had a misleading tendency to confine the inquiry to negligence vel non in respect of the presence and accumulation of driftwood only. There was no error in refusing to allow the witness Jemison to state "what other points along the line of road in the county of Lamar that same night were damaged that had never been damaged up to that time." To have pursued the investigation proposed by the question would have engendered an unprofitable inultiplication of issues.

The judgment will be affirmed.

SIMS v. ALABAMA BREWING CO. (Supreme Court of Alabama. Dec. 19, 1901.)

CONTRACT-PARTIAL ILLEGALITY-EFFECT.

1. An illegal stipulation in a contract which is entire and indivisible in its nature will vitiate the whole contract.

2. A contract whereby defendant, in consideration of the right to use a liquor license issued to a third person, was to assume the latter's indebtedness to plaintiff on account of money advanced for the purchase of the license. or, if it became necessary to procure a new license, to pay plaintiff a stipulated sum per month for money advanced to purchase the same, was severable; and the latter promise was enforceable, even conceding the invalidity of the former.

Action by the Alabama Brewing Company against J. F. Sims. Judgment for plaintiff, and defendant appeals. Affirmed.

John H. Miller, for appellant. M. M. Ullman, for appellee.

TYSON, J. If it be conceded that the promise of defendant to pay to plaintiff the $71.40 per month for the use of the license issued to Stinson & Co. was void on account of illegality, it by no means follows that his promise to pay $71.40 per month to plaintiff for money advanced to purchase a new license to be issued to him was void. It is this latter promise, based upon a consideration of a loan of money by plaintiff to defendant to purchase the license necessary to the carrying on of the business in which he was engaged, that this suit was brought to enforce. Where the contract is entire,-incapable of divisibility,-the rule undoubtedly is that a promise to do an act which is illegal, or a promise to do a legal act based upon an illegal consideration, is void. Clark, Cont. 471. To state the proposition in another form: "Where a contract which is entire contains a stipulation or agreement which is illegal, and which therefore is not severable from the balance of the contract, such illegal stipulation or agreement cannot be ignored, and the other provisions of the contract enforced. The illegal stipulation or agreement in such case penetrates and corrupts the whole contract, and vitiates it as an entirety." On the other hand, "where a contract is in part illegal, and the illegal part is severable from the balance, the effect of such illegality is not to render the whole contract illegal, but the courts will recognize and enforce the legal part; and this is true though the illegality arises out of the violation of a statutory prohibition." So, too, "where the contract contains several independent agreements on the part of one of the parties, and the consideration moving from the other party is apportioned to each agreement, the contract as to such agreements will be held severable; and, in case one is illegal as against public policy, the others may still be enforced." 15 Ain. & Eng. Enc. Law (2d Ed.) pp. 988, 990, 991, and notes. In 2 Pars. Cont. (8th Ed.) p. 633, it is said: "The question whether a contract is entire or separable is often of great importance. Any contract may consist of many parts; and these may be considered as parts of one whole, or as so many distinct contracts entered into at one time, and expressed in the same instrument, but not thereby made one contract. No precise rule can be given by which this question in a given case may be settled. Like most other questions of construction, it depends upon the intention of the parties; and this must be discovered in each case by considering the language employed, and the subject-matter of

one party consists of several distinct and

separate items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by law, such a contract will generally be held to be severable." In the contract before us, we have two distinct and independent promises by the defendant, based upon two distinct and independent considerations. By refer ence to the language employed, the subjectmatter of the contract, and the object it was intended to accomplish, it is clear that the first promise was based upon the consideration of Stinson & Co.'s assent to the use of the license by defendant theretofore issued to them, and the assumption by him of their indebtedness to plaintiff on account of money loaned by plaintiff to Stinson & Co. to purchase said license. It is also clear that the second promise was made upon consideration of a promise by plaintiff to advance defendant the money if it became necessary to purchase a new license, which was fully per formed by plaintiff. Manifestly, the recital, "Now, therefore, in consideration of doing business under said license," found in the second clause of the contract, although preceding the obligation on plaintiff's part to advance the money to defendant to purchase a new license, was no part of the consideration upon which defendant's promise was based to repay the money to be so advanced. consideration moved from Stinson & Co. to defendant, and, based upon it, defendant made the promise to pay Stinson & Co.'s debt to plaintiff, which, as we have said, is not involved in this controversy. Conceding, only for the purposes of this case, that the first promise of defendant was void because based upon an illegal consideration, the second is not, for the very obvious reason that both the consideration and the promise are legal, and in no wise dependent upon the other consideration or promise expressed in the contract. The apportionment of the two sums to be paid by defendant is clearly fixed by the terms of the contract, so there is no difficulty in severing the respective considerations and promises on that account. It seems clear to us that the contract was severable. Affirmed.

That

CROSS et al. v. BERRY et al. (Supreme Court of Alabama. Dec. 17, 1901.)

MORTGAGE IN FRAUD OF CREDITORS-EVIDENCE-EXEMPT PROPERTY.

1. A mortgage of a stock of merchandise given several days after the execution of the notes secured thereby, by the terms of which the mortgagor remained in possession, with no provision for an accounting, and with the agree ment that the debt would be extended as long as the mortgagor desired, on the making of annual payments of the interest, is fraudulent and void as to existing or subsequent creditors.

2. A contention, in a suit to set aside a chattel mortgage as fraudulent as to creditors, that the mortgagor could mortgage the property, as

it was exempt, is without merit, where the val ue of the property exceeded the amount of exemption allowed.

Appeal from chancery court, Morgan county; Wm. H. Simpson, Chancellor.

Suit by Berry, Demoville & Co. against T. M. Cross and others. From a decree in favor of the complainants, the defendants appeal. Affirmed.

S. T. Went and Wm. L. Martin, for appellants. E. W. Godbey, for appellees.

DOWDELL, J. The present bill was filed by Berry, Demoville & Co., who were creditors of the appellant Cross, and seeks to have set aside and annulled a mortgage executed by Cross to the appellant Young as being fraudulent and void as to creditors. Troup, Brock, and Ryan were also made defendants in the bill, for purposes therein averred, which we need not mention here, since they were not made parties to this appeal, the appeal having been taken alone by Cross and Young. The appeal, however, should have been taken in the name of all the defendants, and a summons and severance had in this court as to those not joining in the appeal; but, as no question is raised upon the irregularity in taking the appeal, we will take no further notice of it. The appeal is taken from a final decree rendered on a submission of the cause upon the pleadings and proof. The chancellor, upon his findings on the facts in the case, decreed the mortgage made by appellant Cross to appellant Young fraudulent and void as to complainants, and this decree is here assigned as error.

The undisputed evidence in the case shows that the mortgage in question was given to secure the payment of six notes, each, respectively, in the sum of $100, and all due and payable one year after date; that, several days after the execution of these notes, the mortgage in question, which was given to secure the same, was executed; that, at the time of the execution of the notes, the giving of the mortgage was not contemplated, but was an afterthought and consideration. The property contained in the mortgage consisted of a stock of drugs and fixtures, and being the stock in trade of Cross, the mortgagor, who was then conducting and carrying on a drug business in the city of Decatur. By the terms of the mortgage the mortgagor was permitted to remain in possession of the property mortgaged for the purpose of carrying on his drug business in the usual and ordinary way of selling and disposing of the stock of drugs and replenishing the same as his business might require, without in any manner or form accounting to the mortgagee. It is also shown, without dispute, in the evidence, that, at the time of the making of the mortgage, it was understood and agreed between the mortgagor and mortgagee that