Warten v. Strane , 82 Ala. 311 ( 1886 )

SOMEBVILLE, J.

— 1. The principle is familiar, that where there is a contract of sale of personal property, and anything remains to be done to individualize and identify the. particular property intended to be sold, such as counting, weighing, measuring, or separating from a larger mass or bulk, no title passes to the purchaser, such as will maintain in his favor an action of detinue or trover. This is for the simple reason, that the particular part of the property or chattels contracted to be sold and delivered can not be ascertained by precise identification. — Mobile Savings Bank v. Fry, 69 Ala. 348; s. c., 75 Ala. 473; Sheally & Finn v. Edwards, 73 Ala. 175, 180. The charge of the court, in reference to this phase of the case, was in harmony with this well-settled rule governing sales of personal property, and was free from error.

2. The court erred, however, in allowing the defendant to testify as to any transaction with, or statement by George Gray, the deceased clerk of the plaintiff, touching the alleged contract of sale in controversy. The contrary was decided, it is true, in Baldwin v. Ashby, 54 Ala. 82, which was a construction of section 2704 of the Bevised Code of 1867. That section, however, was applicable only to suits by or against executors or administrators, so far as concerned the clause excepting a certain class of cases from its operation. The present statute is materially different, as found in section 3058 of the Code of 1876. It provides that, in all suits and proceedings other than criminal cases, “there must be no exclusion of any witness because he is a party, or interested in the issue tried, except that neither party shall be allowed to testify against the other, as to any transaction with, or statement by any deceased person, whose estate is interested in the result of such suit, or when such deceased person, at the time of such statement or transaction, acted in any representative or fiduciary relation whatsoever to the party against whom such testimony is sought to be introduced.” — Code, 1876, § 3058. It was observed in McCrary v. Rash, 60 Ala. 374, 377, that this clause scarcely needed comment for a clearer understanding of its meaning, and that it provided a rule different from that declared in Baldwin v. Ashby, supra. Under its provisions, as the law now stands, a defendant is incompetent to testify as to any transaction with, or statement by the deceased agent of the plaintiff, unless called to testify thereto by the opposite party. Eor the error of the court in admitting this evidence, the judgment will necessarily be reversed.

3. So, it was equally incompetent for the plaintiff to prove the terms of the contract made between his deceased agent and the defendant, by the ex-parte declarations of such agent. It is only where such contract is established aliunde that the report of the transaction by the agent to his principal may be regarded as a part of the res gestae, and admissible in favor of the principal. — Meyer v. Hearst, 75 Ala. 390, 394.

The fact, if such be true, that the plaintiff, when the defendant paid off his account with him, may have agreed to sell defendant goods on a credit for the ensuing year, was entirely irrelevant in this action, which is one of detinue brought to recover specific chattels. Neither the truth or falsity of this alleged fact could have had any effect in vesting or divesting the title of the corn claimed to have been purchased by the plaintiff fi om the defendant.

Reversed and remanded.