Mobile & Girard Railroad v. Williams , 54 Ala. 168 ( 1875 )

BRICKELL, C. J.

The statement'which the plaintiff in an action on an appeal from the judgment of a justice of the peace is required to file in the circuit court, is not subject to the technical rules of pleading. If it shows a substantial cause of action — a debt due, or a contract to be performed and a breach, it is sufficient.—Mobile & Ohio R. R. v. Williams, 53 Ala. The duty of a carrier to deliver goods entrusted to him for transportation, springs out of contract, and for his failure to perform an action of assumpsit can be maintained.—1 Chit. Pl. 101. The statement filed by the appellee may well be regarded as in assumpsit, counting on a breach of the contract of the appellant tó carry and deliver the goods. Treating it as an action ex contractu, the jurisdiction of the justice is undoubted.—R. C. § 841.

If it is true the plaintiffs are prosecuting this suit for the use and benefit of another, whom they hold liable for the value of the goods alleged to be lost, it would not prejudice their right to maintain it. It is not a suit the statute requires to be prosecuted in the name of the party beneficially interested, and if it was, the right of the plaintiffs to maintain it has not been controverted by a SAvorn plea, the only mode of putting it in issue.—Rule 29, R. C. p. 822. The court properly excluded the evidence of these facts, Avhich was proposed. It was irrelevant and its introduction could have served no good purpose.

The eAÚdence offered Avas not of a general usage, affecting appellant, because of its generality, notoriety and continued observance. It was of appellant’s own course of dealing, in the delivery of freight to consignees or owners — affecting appellant not as a custom in its proper signification affects a party, because of a presumption that by his contract or act Ire intended to be bound by it, but because it is his own act. The evidence of a party’s mode of dealing, is always admissible against him, when relevant to any fact to be ascertained by the jury. The payment of freight by the appellees was a fact which the jury could consider in determining whether the appellant had delivered the goods on which the freight was charged. Delivery of the goods and payment of freight are usually cotemporaneous. It was proper to aid the jury in determining the weight to be attached to the fact of the payment of freight, to prove that appellant’s course of dealing was to demand and receive payment before delivery.

In permitting appellees to give evidence that the wagoner, who was their agent in the carriage of the goods received from appellant, was an honest man, and a good and careful wagoner, the court erred. He was a witness on the trial, but there was no impeachment of his character. There may be a conflict between his evidence and that of witnesses for appellant. Such conflicts often arise in the course of trials before juries and must be settled by a careful consideration of the evidence of each witness — the consistency of his testimony, his general demeanor, and the interest or feeling he may have involved. They furnish no ground for admitting general evidence as to character; if they did, trials would be indefinitely prolonged, and the real issues on which the jury should pass, embarrassed and lost sight of in the consideration of mere collateral matter.

Eor this error, the judgment must be reversed and the ■cause remanded.