Trammell v. Hudmon , 86 Ala. 472 ( 1888 )

McCLELLAN, J.

1. The question of misjoinder of counts in the complaint, presented by the demurrer, was before this court on a former appeal. It was then held, that the complaint was not open to this objection, and we see no reason now to reconsider that ruling. — Trammell v. Hudmon, 78 Ala. 22.

2. It was entirely within the discretion of the Circuit Court, to postpone or delay the trial temporarily, in order that counsel might have opportunity to examine a deposition, which had been taken in the case, or to refuse to do so; and its action in that regard is not revisable, either directly —as by a determination here that further time should have been allowed; or indirectly — as by holding that a motion made during the trial to suppress the deposition should have been considered, because the refusal of the court to allow further time for an examination had prevented the motion’s being made before the trial was entered upon.

3. The motion referred to, however, might have been properly overruled on another ground. Indeed, for aught the record discloses, the action of the court was based on other reasons. The object of it was to suppress the entire deposition of the witness Worthington, because, as was alleged, he had failed to fully answer certain questions contained in the third, fourth and fifth cross-interrogatories. An examination of the whole deposition demonstrates that, either in the answers to these interrogatories, or in other parts of his testimony, the witness testified as fully as his recollection admitted of, with reference to all the matters embraced in these questions. — Goodrich v. Goodrich, 44 Ala. 670; Meyer v. Mitchell, 75 Ala. 475.

4. The failure of the court to pass on defendant’s objections to interrogatories filed to the witness Worthington, if error, was without injury. The only ground of these objections, which could not, with equal advantage, have been laid against the answers of the witness, was, that the questions were leading; and the ruling of the primary court on this ground is not revisable. — Donnell v. Jones, 13 Ala. 490.

5. The record shows that the defendant had the benefit of all other grounds of objection, upon which he was entitled to rely, in being allowed to file, and have the court pass on, his objections to the evidence when it was offered. He was, therefore, not prejudiced by the omission of the court to rule on his original objections.

6. It is now to be considered, whether the court erred in allowing the answer of this witness, to which exception was taken, to go to the jury. The bill of exceptions does not purport to set out all the evidence. It is affirmatively shown, however, that the deposition of Worthington was the first evidence introduced. This deposition contained evidence of the terms of the original contract between Hudmon and Worthington, which was shown by it to have been in writing, but it contained no evidence of its loss or destruction. In one aspect of the case presented by the pleadings, the plaintiff’s right to recover depended upon the terms of this contract, and was to be “worked out by a species of subrogation” of Trammell to the right of Worthington under the written instrument, as modified by the subsequent verbal agreement. The contract, then, was not merely incidental and collateral to the issues in the case, but, as to one of these issues, it was direct and controlling, and should have been produced, or its absence accounted for, .before secondary evidence of its terms was received. Tbe admission of tbe evidence of Worthington, as to the contents of this instrument, before any showing of its loss was made, was, therefore, improper, and the action of the court in overruling defendant’s objection to it was error, raising a presumption of injury, which the record fails to affirmatively show was rebutted by subsequent proof of loss or destruction of the paper, and operating a reversal of the case. The other objections to th"e evidence of the witness, Worthington, were correctly adjudged by the court below.

7. In one phase of the case, plaintiff’s claim was directly against Hudmon. It having been drawn out, that the account appeared on his books as against Worthington, it was competent for him to explain to the jury how this was so, consistently with the theory of Hudmon’s direct liability to him. To this end, the facts that the charge had been so made to keep this transaction separate from other claims he had against Hudmon, and that the entry had been made by another, without his authority, were properly admitted; but his statement, that he had before refused to’ credit Worthington, and would not credit him, should have been excluded.

8. The notice provided for by section 8026 of the Code, to charge the owner for the unpaid balance due the contractor, must state, among other things, “for what, and from whom” the amount, claimed “is owing.” The notice proved on the trial did not fulfill this requirement, and the motion of the defendant to'exclude it from the jury should have ‘been sustained; and for the same reason, that part of the court’s general charge which related to this zzotice, and to which an exception was reserved, was erroneous.

We discover no ezuor in the chaz’ges given by the cozzrt at the request of the plaintiff. The other questions presented by the record will, probably, not arise on another trial of the case, and we deem it unnecessary to consider them.

Beversed and remanded.