Spence v. Mitchell , 9 Ala. 744 ( 1846 )

COLLIER, C. J.

The defendant stipulated in his receipt to the plaintiff, to return the wagon “ whenever called for, in good repair, and free from expense.” This undertaking imposed upon him the duty to deliver it up on demand, or excuse the non delivery. If he suffered a third person to take it from his possession, or if he acquiesced in such removal, he would in either case be chargeable as for a conversion; unless he could show that the person thus taking it, had the superior title. There is no inflexible rule of law which would prevent him from excusing the non performance of his engagement by making such a defence.

When the demand of the wagon was made, the defendant did not place his refusal to deliver it upon the ground that the individual demanding it was unauthorized to receive it; but his reply was, that Hill had sent for and taken it away. If he had denied the authority, evidence’ of it might perhaps have been adduced ; or if defective, its defects supplied. Under these circumstances, the objection that the demand was made by one who gratuitously represented the plaintiff, can avail nothing. The inquiry then, should have been, has the possession been yielded to a title superior to the plaintiff’s?

Notwithstanding the denial by Hill, that he was interested in the result of the suit, it is insisted by the defendant in error, that he was liable to Spence if a recovery was had against the latter. Conceding this to be so, and it may be asked whether he will not be liable to Mitchell and Givens, for the amount of the blacksmith’s account, if the plaintiff below shall fail to recover a sufficient sum in the present action to discharge it ? Is not then his interest balanced ? But if this equilibrium of interest does not exist, would a verdict and judgment in favor of the one party, or the other, be evidence to affect Hill ? If it would not, then an objection to the witness would only go to his credibility.

In Gibson, et al. v. Goldthwaite, 7 Ala. Rep. 281, it was held, that the deposition of a witness should not be'excluded merely because he has omitted to answer one of the questions-propounded, which was prima facie impertinent, and the direct answer to which could not benefit the party by whom it was proposed. In the present case, perhaps two of the questions asked upon the cross-examination, were not directly answered, as they should" have been, yet the facts which they proposed to elicit, may be ascertained from answers given in other parts of the deposition, and there is nothing in the answers made, from which it may be inferred that the witness designed to answer evasively. It is evident that the witness had some little feeling, influenced doubtless by the conviction that the plaintiff had collected his money, which had never been accounted for, to a greater amount than the account for blacksmith’s work. This may very readily account for the manner in which he answered the questions referred to, without attributing to him an intentional concealment. '

In Cullum v. Smith & Concklin, 6 Ala. Rep. 625, we said that a motion to suppress a deposition which had been taken in conformity to the statutes, is addressed to the sound discretion of the court, and should never be allowed when sprung at the trial, inasmuch as its effect then must be, to take the opposite party by surprise. [See also Carters v. Manning & Jackson, 7 Ala. Rep. 851.] Thus we see that a deposition regularly taken, if the facts disclosed in it are admissible and narrated by a competent witness, should not be suppressed at the trial, for an objection that the answers are defective. If such an objection were then tolerated, it might be productive of great inconvenience, by subjecting the party against whom it was made to costs, and the hazard of obtaining a new trial if unsuccessful, in consequence of the rejection of the deposition. It follows from this view, that the deposition of Hill was improperly excluded.

The receipt of the plaintiff, for notes, Sf c. which Hill had placed in his hands to collect, was inadmissible, either when offered alone, or in connection with the extrinsic proof. The undertaking of the plaintiff to collect, was in his official character of justice of the peace, and there was no stipulation between himself and Hill, that the former should appropriate of what he might collect, a sufficient sum to discharge the demand of Givens and himself against Hill, Buchanan and Copeland. Without the assent of the creditor, a justice of the peace cannot retain monies received by him officially, in payment of a debt due him by the former. [Lowrie v. Stewart, 8 Ala. Rep. 163.] Besides, if it were allowable for Hill tima to extinguish the demand of the plaintiff and Givens, without obtaining the consent of either of them, the testimony is at fault in not showing that a sufficient sum had been collected by the plaintiff to pay it.

We cannot perceive any objection to the testimony of Copeland; for however the present suit may eventuate, the debt for which, with Hill and Buchanan, he is liable, will still remain unpaid, and the legal obligation to pay it be unimpaired ; at least so far as he is concerned. What he said in respect to Hill was admissible to weaken the force of Hill’s testimony, and may perhaps be considered as nothing more than a reaffirmance of what is recited in the receipt given by the defendant to the plaintiff; and in that view perhaps was part of the reé gestee.

It sufficiently appears from what has already been said, that the evidence of a conversion, if accredited by the jury, was entirely competent to sustain the action, if the proof was in other respects such as authorized a recovery.

For the suppression of the deposition of Hill, the judgment of the County Court is reversed, and the cause remanded.