McGill v. Monette , 37 Ala. 49 ( 1860 )

R. W. WALKER, J.

1. The demurrers to the complaint were properly overruled. Although the plaintiff held the cotton as bailee, yet it was competent for him to sue in his own name on the contract made with the defendants. If it be conceded that Iris right to sue on this contract is dependent on his liability over to his principals, it is plain that this liability results, as matter of law, from the allegations of the complaint.—Cox v. Easley, 11 Ala. 369 ; Steamboat Farmer v. McCraw, 26 Ala. 204; Story on Bailments, § 94; 1 Parsons on Contracts, 633 ; Hare v. Fuller, 7 Ala. 717.

2. The objection to the deposition of the witness Eaby came too late. — -Code, § 2328.

3-4. The transcripts and receipts were 'offered, in connection with the written agreement of .counsel which is* set out in the bill of exceptions, for ;tlie single purpose of proving that the owners of the .cotton had demanded of the plaintiff compensation for the injury it had sustained while the barge wasdn tow of the steamer. There is some reason to infer from the bill .of exceptions, that this evidence was offered to rebut evidence of a contrary tendency previously introduced by the defendant. However this-may be, it does not lio isa- the mouth of the appellant to-say, that the making of -such demand by the owners of the cotton was not a matter involved in the issue before the jury, or that the .admission of evidence competent to establish that fact should work a reversal of the judgment. The bill of exceptions clearly shows, that one of the matters of defense relied on by the defendant was, that the owners of the cotton had made no demand of compensation; and that be asserted on the trial .tlie legal-proposition, that the plaintiff was not entitled, to recover without proving such demand. Having thus insisted upon the necessity of such evidence, as essential to-make out the plaintiff’s cause of action, he cannot now shift his ground, and be heard to-say that the very evidence, without which he then claimed that the plaintiff could not recover, was in fact irrelevant and illegal. If, therefore, the fact, of demand was irrelevant, the appellant is estopped from, saying so. Hence, the only objection which he can here urge to the admissibility of the transcripts and receipts in evidence, is, not that the fact which they were introduced to establish was irrelevant, but that, assuming it todiave been relevant, they did not constitute a proper or legal means of proving it. There is nothing in this objection ? for it is clear that, in connection with the agreement referred to, the judgments and receipts did tend to show that the parties who obtained the judgments and executed the receipts, had demanded of the plaintiff compensation for the damage done to their cotton. They were, therefore, competent evidence of that fact. — Darrington v. Borland, 3 Porter, 91 Greenl. Ev. §§ 528, 538-9 ; Harrell v. Whitman, 20 Ala. 519; Goodman v. Walker, 30 Ala. 500.

5. The suit was for damages- arising from the breach of a contract. If the plaintiff did not establish the contract, and its breach, he was not entitled to recover. It follows, that the statute of limitations of one .year had nothing to do with the case.

6. Some of the evidence -of the witness Stollenworth ■was clearly admissible; and the motion being to exclude .the whole of his Testimony, there was no error in overruling it.

7. The other assignments of error are not insisted on in the briefs of the counsel for the appellant, and we do not ¡notice them.

.Judgment affirmed.