Goldsmith & Davis v. McCafferty , 101 Ala. 663 ( 1893 )

McOLELLAN, J.

On May 12, 1890, Goldsmith & Davis sold to McOafferty “1 bale Havana tobacco, 118 lbs. at $1.10 — $129.80, and one case leaf tobacco, 350 lbs, 30 cents, $105,” on four months time. On August 4th, 1890, the evidence tends to show, McOafferty delivered separate notes for the two items of the account, that for $129.80 being the price of the bale of Havana bearing date as of June 1st, and that for $105, being the price of the case of leaf tobacco, bearing date as of July 1st. Each note was payable four months after date. Before these notes were executed a controversy arose .between the parties as to the .condition and quality of the case of leaf tobacco. McOafferty claimed that this tobacco was unsound, and, finally — he now says after the notes had been delivered — that it had been re-sweated, whereas it had been represented and sold to him as “natural sweet leaf, ’ ’ and that it was not worth more than twenty cents per pound. He brought forward and insisted upon these claims by letters to the sellers; but on July 21st, before the notes were delivered, he wrote that he would keep it, if Goldsmith & Davis would give him a longer time than four months in which to pay for it. There is evidence, in the fact that the note for this item was made payable four months from July 1st, instead of from May 13th, the date-of the bill, or June 1st, the date of the other note, tending to show that this proposition was accepted and the extension granted. Outlie other hand, in inspect of the bale of Plavana tobacco, the other item in the account, the amount of which was $129.80, for which a separate note was given, there is no evidence that any controversjr ever arose between the parties. All that is said in the correspondence, or any where in the evidence, having reference to this item is found in McCafferty’s letter of October 13th. He there says : “The Havana has lost its aroma, and is but very little better than any good domestic filler.” This letter was written five months after the sale and delivery, and it can not be construed into a claim that the tobacco was not as represented at the time of the sale; but only that during the intervening time it has lost its aroma; and this fact appears to have been thrown out merely for the purpose of conducing to a more favorable consideration of the buyer’s claims as to the leaf tobacco. No extension of time for payment of this item is asked, and that none was granted is apparent from the date of the note, which is as of the first day of the month succeeding that toward the end of which the goods were received, and even the failure to date the note on the precise day of the receipt of the goods is explained in McCafferty’s letter of July 29th, where he says : “I have dated note for Havana from June 1st, as that was the arrangement made with Mr. G.,” and this arrangement with Mr. G. was clearly a matter of convenience of dates and not of any real extension of time, since it is not reasonable to suppose that McCafferty having, as he claimed, a serious grievance against the sellers which he proposed to abandon for an extension of time of* payment would have been content with the very few' days intervening between the arrival of the shipment and the first of J une. On the foregoing and Other considerations shown by the bill of exceptions (which the reporter will set out in full) is based our conclusion that in point of fact no question has ever been made as to McCafferty’s liability for the full amount of the note for $129.80, representing the price of the Havana tobacco, and no claim was ever made that that tobacco, the sale and purchase of which wras segregated from that of the leaf tobacco, and constituted a separate transaction in legal effect by McCafferty himself, was unsound, or was re-sweated or was worth only twenty cents per pound, and no extension of time for payment therefor was ever asked or granted.

The present action is upon this note for $129.80, evidencing McCafferty’s indebtedness for the bale of Havana tobacco, the price of which as we have seen, was $1.10 per pound. The note for $105, for the case of leaf tobacco at 30 cents per pound, is no more involved here than if the transaction out of which it arose had never transpired. The trial court,however,instructed the jury, at defendant’s request, as follows : “Even though the jury may believe the defendant asked for and obtained an extension of time of the indebtedness sued on, this does not prevent him setting up a failure of consideration in the debt sued on, if the defendant was not aware, at the time he gave the note, that the tobacco was re-sweated, and it was in fact re-sweated. ” And the jury returned a verdict for the plaintiffs for the value of the Havana tobacco, which they found to be twenty cents instead of one dollar and ten cents per pound. It is clear that this charge was entirely abstract, in that there was no evidence that any extension of time was asked or granted in respect of the Havana tobacco, or that it was re-sweated, and this tobacco alone constituting the consideration of the note sued on, there was, it follows, no evidence of a failure of consideration. It is clear also to us that the jury were misled by this instruction to the conclusion that the evidence as to resweating, extension of time and failure of consideration had reference to the Havana tobacco and the note sued on, when in truth its relation was entirely to the case of leaf tobacco and the note for $105, which is not sued on, since their verdict is wholly inexplicable upon any other hypothesis.

It is very rarely the case that the giving of an abstract charge requires the reversal of a judgment. But where the charge is abstract and misleading, and it is, as here, manifest that the jury has been misled by it to the prejudice of the appellant, the law is well settled, that the consequent judgment should be reversed. — Bernstein v. Humes, 71 Ala. 260; Herring v. Skaggs, 73 Ala 446; Beck v. State, 80 Ala. I; State v. Vance, 80 Ala. 356; Goldsmith v. State, 86 Ala. 55; 5 So. Rep. 480; Schaungut’s Admr. v. Udell & Crunden, 93 Ala. 302, 9 So. Rep. 550.

For this error, into which the lower court was probably led by a request for an instruction on the same subject and likewise abstract by the plaintiffs, the judgment must be reversed. The cause is remanded.

Reversed and remanded.