Buist v. Guice , 105 Ala. 518 ( 1894 )

McCLELLAN, J.

This is the second appeal in this case. On the former appeal all the questions now presented were decided against the appellant — then and now — save only two.—Buist v. Guice, 96 Ala. 255. Of the two new points the first arises upon the trial court’s refusal to allow the defendant to ask the plaintiff as a witness in his own behalf at what price he, the plaintiff, sold Irish potatoes during the season of 1890-91. This action was, in our opinion, erroneous. The onus was upon the plaintiff to show the difference in the market value of Irish potatoes at Eufaula, at the time he contracted for two hundred and fifty barrels of such potatoes at $2.75 per barrels in September, 1890, and at the time they were to be, but were not, delivered to him in January, 1891. The plaintiff himself, we gather from the bill of exceptions, testified that the difference was from one dollar to one dollar and a quarter per barrel. And then upon cross-examination the defendant proposed to ask him the question stated above, as to the price at which he, the witness, had sold potatoes during the season covering Januai*y, 1891, when, according to the.contract, if there was a contract, he should have received the 250 barrels of potatoes from the defendant. The inquiry tended directly to test the accuracy of the witness’s knowledge of the market value of potatoes at that time, the reasonableness of his estimate of value and, in consequence, the credibility of his testimony. The defendant was entitled to have him answer the question.

The other question presented now for the first time in this case arises upon an exception to an instruction given by the court ex mero motu, to the effect that the plaintiff could not recover more than $250, and interest at 8 per cent, from the time of the breach of the contract, if there was a contract, and a breach of it was committed. Inasmuch as the evidence, without conflict, showed that on the hypothesis stated in this instruction the damage to plaintiff was at least one dollar for each of the 250 barrels of potatoes contracted for, we are unable to see any merit in the exception reseiwed to it.

For the error adverted to above the judgment must be reversed. The cause is remanded.

Reversed and remanded.