Tyree v. Parham's , 66 Ala. 424 ( 1880 )

SOMERYILLE, J.

The testimony of the witness George W. Parham, in which he was permitted to state to the jury, from a written memorandum, the date and amount of the judgment in favor of Moody, was objectionable only on the ground that it was secondary evidence, and carried on its face the indication that better evidence remained behind of the existence and contents of such record-. Aud while the judgment itself, or a copy properly certified by an authorized officer, one sworn to, or exemplified, was the only primary evidence, the admission of the secondary proof could work no possible injury to appellant, in as much as a copy of the judgment had already been introduced in proper form.

We are of opinion that the appellant, Tyree, had no right to retain the money in his hands, belonging to the estate of Francis Parham, after the payment of it was demanded by the executor. A surety, until he actually pays the debt of his principal, has no available demand against him, or his’ estate, which can be used as a set-off. His right of action against the principal commences only with his payment or satisfaction of the debt for which he stands bound as surety. Waterman on Set-off, § 88; Stallworth v. Preslar, 34 Ala. 505. Whether a court of equity might not intervene, where the principal was insolvent, on a proper case being made by the surety, is a question not here presented for our consideration. Sims v. Wallace, 6 B. Monroe, 412.

Appellant was, therefore, liable for interest on the moneys in his hands, from the date of the demand made on him by the executor of Francis Parham. Being a commission-merchant and cotton-factor, he held the funds of the testator, proceeding from the sale of his cotton, as a mere agent, or bailee, subject to his order on demand. He had promptly rendered a statement of the account of sales, and had even kept the money in bank on deposit, separate from his own ; thus exercising a greater degree of care than the law exacted of him in this particular regard. Had no demand, under these circumstances, been made by one authorized to sue for the money, no liability for interest would have been incurred. Interest commenced to accrue, and was payable, only from the date of such demand.—Ingersoll v. Campbell, 46 Ala. 282; Gunn v. Howell, 35 Ala. 144. The rule of duty governing in such cases is properly stated as follows, in Edwards on Factors and Brokers, § 91: “He [the factor] is bound to render an account, within a reasonable time, without being called on to do so; but he is at liberty to wait for instructions as to the mode of remitting or paying over money belonging to the principal. For it is settled, that an action can not be maintained against him, for money had and received, without showing either a demand, or a failure to remit pursuant to instructions ; or that, according to the course of the business, it was his duty to remit without waiting for instructions.” Cooley v. Betts, 24 Wendell, 203; Jellison v. Lafonta, 19 Pick. 244.

The proposition enunciated in the second head-note of Williams v. McConnico, 44 Ala. 627, that a commission-mer - chant is liable for interest on a balance in his hands in favor of his principal, in the absence of some contract or usage of trade to the contrary, is not universally correct. In the opinion of Sapfold, J., on an application for rehearing in the same case, it was not only expressly doubted, but the point was held not to have been raised by the record for decision in the first instance.

The appellant’s counsel insist that the three charges, given at his (the plaintiff’s) request, should have been indorsed “given” by the presiding judge, and signed by him, as required by section 3109 of the Code of 1876; and that it was error to permit them to go to the jury, without such indorsement and signature; from which, it is argued, that injury may be presumed. As this statute has been held to be mandatory, and not simply directory, the duty of the circuit judge is plainly designated by its peremptory provisions.—Miller v. Hampton, 37 Ala. 342. But the record presents no exception, 'to his action, which raises any question for the consideration of this court. There was no objection interposed, at the proper time, to the action of the court in allowing the charges to go to the jury, in the form in which they were ; and it was the irremediable misfortune of the plaintiff, that the discovery was not made in time for such objection, which should have been before the jury left the bar.—City Council v. Gilmer, 33 Ala. 116; 38 Ala. 514.

The proceedings had on the motion for a new trial, based on this ground, are properly no part of the record in the cause, are not revisable on error, and can not be looked to-by the appellate court for any purpose whatever. — 2 Brick. Dig. 296, § 1, cases cited.

We take occasion here again to .condemn the practice, so often indulged, of incorporating redundant matter in bills of exceptions, thus rendering the record confused and unnecessarily voluminous. It is desirable that the bill should state only “the point, charge, opinion or decision, wherein the court is supposed to err, with such a statement of the facts as is necessary to make it intelligible.” — Code, 1876, § 3108. It is unnecessary to set out the general charge of the court, if unexcepted to, as it can cure no error committed in the improper giving or refusal of a charge requested by either party. It is equally so, to load the record with the cumulative testimony of witnesses who repeat in substance the same facts. And the habit of incorporating the pleadings and rulings of the court on demurrers- in the bill of exceptions, is improper, and should be discouraged. Such matters need be shown by the record alone, apart from the bill.

The rulings of the Circuit Court are in conformity with these views, and its judgment is affirmed.