Little v. Lichkoff , 98 Ala. 321 ( 1893 )

HARALSON, J

1. The plaintiff in the court below, ap-pellee here, being examined as a witness- in his own behalf, was asked by his counsel, to state the total amounts due him by each person indebted to him, at the time of the levy of the attachment on his stock of goods; and, to refresh his memory, he was allowed to examine his ledger as to entries of indebtedness. After an examination of them, he stated, that the entries had been made by him, or by his book-keeper, under his direction, in the usual course of his business as a merchant, and he had personal knowledge of their correctness; and he then stated, as a matter of independent recollection, after being thus refreshed, what amounts were due to him.

Defendant’s counsel then asked witness, on cross examination, “If all these entries of the amounts due, to which he had testified, were in fact made as he had stated in his direct examination, and were not some of them made by himself, since tíre attachment, and since the origin of this suit?”

To this question, the plaintiff objected, because the book had never been offered in evidence, and the same was irrelevant.

The court sustained the objection against the exception of the defendant. This was an erroneous ruling. The witness having refreshed his memory by an examination of the entries in the ledger, and testified to their correctness, the adverse party had the right to cross examine him upon those entries in the book, without making them his evidence in the cause. — 1 Gr. Ev., 466; Stoudenmire v. Harper, 81 Ala. 242; Acklen v. Hickman, 63 Ala. 498.

2. There was no error in allowing the plaintiff, as a witness, to give his opinion of the reasonable market value of the stock of goods, at the time the attachment was sued out and levied. If in what he said, as appears to be the case, their market value at that time, in his judgment, was their cost price, with 33.1-3 per cent, added, it was competent for it to go to the jury in that shape. Possibly, a cross examination would have shown, that the estimate was speculative, but it does not now, so appear. "What are termed speculative profits — that is, possible or even probable profits — are too remote, and evidence tending to show such profits is not admissible.—Pollock v. Gantt, 69 Ala. 377; Union Refining Co. v. Barton, 77 Ala. 148; Brigham v. Carlisle, 78 Ala. 248; Young v. Cureton, 87 Ala. 727.

3. It was competent for defendant to ask plaintiff, on his cross examination, as a witness in his own behalf, “If Zeibert did not change the labels on a quantity of shoes which he had gotten from plaintiff?” There was evidence tending to show, that plaintiff had used Zeibert to aid him in defrauding his creditors, by making false transfers or sales to him of quantities of goods, shortly before the attachment was levied, and this evidence had some tendency to establish that conspiracy.

4. When W. E. Eitts, witness for plaintiff had testified, that the plaintiff’s credit at the bank of J. H. Eitts & Co., of which firm he was a member, was good, before the attachment was sued out, and afterwards, it was lost and destroyed, it was allowable for the defendant to ask him, on his cross examination, “If he had not refused plaintiff credit at his bank, prior to the attachment?” and the refusal of the court to allow the question, was obviously erroneous.

5. The court committed no error in excluding the evidence to which defendant excepted, on which assignments of error numbered. 8, 10, 11 and 19 were based. It was all objectionable, as being either hearsay, secondary, or res inter alios.

6. The court erred in excluding from the jury on motion of the plaintiff, the words of the witness, Fielder, for defendant, viz: “Ziebert first brought word,” to plaintiff, “that Fitts was getting ready to attach him,” because, the answer, when taken with the other evidence, tends to show the alleged conspiracy between Zeibert. and plaintiff, by which the former was to''aid the plaintiff in defrauding his creditors, by placing his property out of their reach.

Assignments from 12 to 18 inclusive, are without merit and are not insisted on in argument.

7. In rebuttal, the plaintiff introduced H. L. Zeibert, as a witness, who, on his direct examination testified, that he had bought more or less goods all the year from the plaintiff, and large amounts in October and November, 1890, and had bought them in the usual course of trade, and had paid for them, the full market price. There had been evidence introduced, tending to show, as has been before stated, that said Zeibert had been used by plaintiff as agent to aid him in defrauding his creditors, by making a fraudulent disposi tion of his stock of goods. On the cross examination of this witness, the defendant, as is evident, with a view to impeach his credibility, asked him, “If he had not told one Brooks, at his, Zeibert’s store, a few days before Lichkoff was attached, that he had been buying shoes from Lichkoff at 75c. per pair, that were worth at wholesale, on the market, $1.25 per pair?” and if, at the same time and place, he did not tell Brooks, that he could discount his (Brooks’) prices, —Brooks being a shoe dealer, — fifty per cent., and showed him the shoes he said he had gotten from Lichkoff at 75 cents per pair ?

For the purpose for which it was offered, — evidently to lay a predicate to contradict the witness, — this evidence was perfectly competent. It tended to show a contradiction in the statements of the witness, if answered affirmatively, and if in the negative, it furnished a predicate to contradict him with Brooks.

Reversed and remanded.