Bynum v. Southern Pump & Pipe Co. , 63 Ala. 462 ( 1879 )

MANNING, J.

There was no error in the refusal of the court to permit the conversations óf Whitesides to be introduced, in regard to the right of plaintiffs to the mule sued for. Whitesides was, apparently, only an agent to demand and get the mule for plaintiffs, from the defendant. This was not such a relation as authorized proof to be made of what he had said in conversations with others, of the claim of plaintiffs, if he had said any thing in derogation of their right of property. Nor does it seem to have been indicated to the court, what it was supposed to have been said by Whitesides, that it was proposed to prove. It does not, therefore, appear that defendant was prejudiced by the exclusion of the testimony, or that the court erred' in excluding it. The proposed examination, so far as is shown, may have been merely a “fishing” for evidence that did not exist.

According to the bill of exceptions, “ the court • charged the jury, generally, the law applicable to the case; and no exceptions were reserved to the charge.” But the judge refused to charge, at tbe request of defendant, “If the jury find, from the evidence, that tbe contract in regard to tbe mule was in writing, and that tbe writing bad been lost,-then it was incumbent on tbe plaintiffs to sbow tbe contents of said writing; and in its absence, or in tbe absence of tbe proof of tbe contents, it is right that tbe jury should look to tbe evidence in this case; and if they find one sole witness as to tbe contract of sale, then they will be authorized to look to that evidence.” The fault of this charge is, that it would tend to confuse tbe jury. It would be their duty to look to all the evidence before them, whether tbe supposed contract was lost, or its contents proved, or not proved. But tbe impression tbe instruction asked would have probably made, is that, if tbe plaintiffs’ witness, Shipp, in bis evidence, that by tbe written contract there was only a hiring of tbe mules and wagon to McKendree, and according to McKendree’s testimony, there was, besides, a conditional contract of sale, they must give the greater weight to MeKendree’s testimony. This would have been error, and tbe court did right in refusing it.

If there was any error in tbe instruction of tbe court to tbe jury, when they returned the first time, with an incomplete verdict, that they should complete it, by a finding in respect to damages for tbe detention of tbe mule, no objection, or exception, was then made to that instruction, and it is not therefore subject to revision here.

Let tbe judgment be affirmed.