Young v. O'Neal , 57 Ala. 566 ( 1877 )

MANNING, J.

1. The assignment of a judgment of the court overruling the demurrers to the pleas, as error, is not sustained by the record. There is no such judgment shown, except by a recital in the bill of exceptions — where such recital ought not to be — if, in fact, the judgment was rendered. A judgment upon a demurrer, as well as upon a verdict, must appear by the minutes of the court that rendered it, and. be a part of the regular record of the cause.

2. The only office of a bill of exceptions is to present for revision such charges and rulings of the court as “ would not otherwise appear on record, and so much of the evidence as is necessary to show how the questions involved in them arose.” — Code of 1876, § 3107; Petty v. Pill, 53 Ala. 641.

3. The defense to the note sued on being, that the compound sold to defendant as guano and a valuable fertilizer, was a worthless and useless substance, it was not erroneous to allow a witness, who had described how he had used it in the cultivation of a crop, to be asked, “ if the guano so used and applied was of any benefit to the crop.” The matter here inquired about was not a conclusion of law, or a mere inference of any kind, but a resultant fact, which could be seen and known by an observer. “ There is no matter which involves a combination of facts that is not liable to be called a conclusion,” if this term is properly applied to the knowledge of a visible effect produced by physical causes on a material thing.—See Chenault v. Walker, 14 Ala. 154-5.

4. Plaintiff proposed to examine the person by whom the guano was sold to him, “ as to his opinion of the market and merchantable value of the guano, . . . and as to its merits and intrinsic value as a fertilizer, based upon his knowledge as an old merchant, dealing in "guano for ten or twelve years;” which evidence the court refused to receive. The witness is not shown to have had such experience and knowledge as entitles his opinions upon the subject-under consideration to be received as evidence; and there was no error in so ruling.

5. Nor was there any error in refusing to permit another witness who had been farming several years in the neighborhood of the defendant, to.be examined “ touching his knowledge of the practical use of guano and fertilizers on a sandy soil, with a view to making him a witness, as an expert in that respect.” The evidence in respect to other fertilizing compounds would not have been sufficiently relevant.

6. But, when it was shown that this witness had used the “ soluble Pacific guano,” (the fertilizer for which, in 1873, the note was given,) “ purchased from plaintiff for the last three years, including 1873, that he had experimented with it on all kinds of garden and field plants and crops, and had closely and critically .watched its effects and results,” we think the witness should have been allowed to testify concerning the proper methods of using the fertilizer in question, and what would prevent it from acting beneficially. For, if its inutility was caused only by mistake, or want of proper skill and care in the application of it, or by the ex•cessive rains which, as plaintiff and other witnesses testified, continued for several months during the first half of the year, the consequences thus produced ought not to be transferred from the purchaser back upon the plaintiff. He should not be made responsible for effects that did not result from the ^absence of value in the article he sold. The circuit judge -erred in not permitting the examination of this witness.

7. The charge asked on behalf of plaintiff and refused, related to the meaning of a statute of Georgia, which was set forth in one of the pleas of defendant. "We can know nothing of the statute of a sister State, unless it be proved. But the bill of exceptions, although it recites that it contains all the evidence in the cause, does not show that any evidence was given of such a statute. The charge was therefore abstract, and for that reason, if no other, it was properly refused.

For the error noticed, let the judgment be reversed and. the cause remanded.