Adams v. Thornton & Wellborn , 82 Ala. 260 ( 1886 )

STONE, C. J.

— The bill of exceptions, in one place, tends to show that both parties agreed to try the case with ten jurors, and, in another place, that the plaintiffs demanded a full jury, unless defendant would consent to try with the eleven who were present. The court ordered a new jury to be struck and organized, after filling up the panel to two full juries, or twenty-four names. In thus ordering, the Circuit Court ruled, in effect, that no valid agreement had been made to try with less than a full jury, and the record fails to convince us he erred in so ruling. In summoning additional jurors to complete the panel, before the process of rejection or striking should commence, the Circuit Court committed no error. — Abernathy v. State, 78 Ala. 411.

2. In permitting plaintiffs to prove that, since the attachment, they had been enabled to resume business through the aid of others, and who these others were, the Circuit Court erred. This testimony, in behalf of plaintiffs, was wholly irrelevant, as an independent proposition. If, in answer to the charge that plaintiffs’ credit had been impaired by the attachment, it had been shown in defense that they had resumed business, we will not say plaintiffs could not then have explained by proof how it was they had been enabled to resume. Offered as it was, however, the Circuit Court erred in admitting it. — Mattison v. State, 55 Ala. 24.

3. Neither was it permissible to prove what amount of business plaintiffs had done since the levy of the attachment, as furnishing any reliable basis for the assessment of damages. Trade is dependent on .too many contingencies to be relied on as a factor in such calculation. Financial activity or depression, competition, amount of capital invested, and many other concomitants or accidents, enter into the problem of success in a mercantile adventure. Probable dato'for the assessment of damages should be sufficiently uniform in their nature and working, as to have acquired the qualities of at least a general rule. — Galbraith v. Cole, 61 Ala. 139.

4. The Circuit Court also erred in permitting plaintiff Wellborn to testify that “the assignment was made on account of the attachment.” So far as the record informs us, this was proving a secret or uncommunieated motive. This should have been left for the jury to determine. — Herring v. Skaggs, 57 Ala. 180; Ala. Fur. Co. v. Reynolds, 79 Ala. 497.

• 5. The testimony of the witness Sayre, offered as it was, was irrelevant, and should not have been received. The most tbat can "be made of it is, that it tended to corroborate Wellborn’s testimony on this trial, by proving he had given similar testimony on a former trial. - 1 Greenl. Ev. § 419; Conrad v. Griffey, 11 How. U. S. 480.

6. The eleventh charge given at the instance of plaintiffs asserts, that if a partnership consists of two members, and both are present, or can be consulted, then one partner can not make an assignment of all the property without consulting the other, or against his objection. Conceding that each partner has equal right in, and power over the partnership effects, this charge would seem to be an axiomatic truth. Two equal forces, operating in opposite directions, can not produce motion; and motion or action is necessary to the making of an assignment, or any other contract. In the case of Ellis v. Allen, Bush & West, at the present term (80 Ala. 515), we considered this question, and need add nothing to what is there said. This charge is free from error.

7. Charge 2, asked by defendant, is not the assertion of a legal proposition. It is, at most, an argument, and was rightly refused on that account.

There is nothing in the other questions raised.

Reversed and remanded.