Shrimpton & Sons v. Brice & Donehoo , 109 Ala. 640 ( 1895 )

COLEMAN, J.

The appellants sued to recover the value of merchandise, consisting of pins, alleged to have been sold by plaintiff to defendants. The complaint consists of several counts in the common form, upon an account, and upon an account stated, and for goods sold and delivered. The defendants pleaded the general issue, and upon this issue the ease was tided. The jury rendered a verdict for the defendants. The plaintiff offered in evidence an account verified as provided in the statute, and rested.

The first assignment of error is that the court erred in permitting the defandants to ask the witness Brice, “Is that amount correct?” There was no error in this ruling. The plaintiff had the right, on cross-examination, to inquire of the witness, the facts, and to test the correctness of the statement. The general rule is that a witness cannot testify to mere conclusions, but there are many exceptions, and the question of indebtedness, when sued upon verified account, is within the exception.

The second assignment of error is upon the admission of evidence, first admitted by the court and subsequently, during the trial, excluded. The jury were instructed by the court not to consider such evidence. We find no error prejudicial to the plaintiff.

The next assignment of error is that the court sustained an objection to the 9th interrogatory to the witness A. A. Wright. The two latter clauses of the interrogatory were clearly objectionable. It was not competent to prove the plaintiff’s claim m this way. The answer was irrelevant and illegal, and the court did not err in sustaining the objection to the interrogatory, nor in excluding the answer.

The question to the witness D. E. Wright is not in the abstract, and we are unable to say whether it was responsive or not. Prima facie, the answer was irrelevant and illegal, and we cannot say there was error in excluding it. The court properly sustained the motion of defendant to exclude so much of the answer of the witness A. A. Wright as was not responsive to the question, “Was the receipt of that order acknowledged? If so, when and in what way?” The information obtained from the mercantile agency was not responsive or pertinent to the matter inquired about.

The instructions requested by the plaintiff, and which were refused, require a short statement of the facts of the case. On or about the 7th of April, 1893, the defendants forwarded a written order to the plaintiff for some pins. The plaintiff’s contention is that the order called for ‘ ‘five great gross papers of pins,” and the defendants’ contention is that they ordered only “5 great gross of pins, and not 5 great gross papers of „ pins.” Prior to July 6th the defendants received an invoice of pins, and on the 6th wrote to plaintiffs that there was a mistake, that they had ordered “5 great gross pins, and not 5 great gross papers of pins.” On August 6th the defendants received a “statement” of the account, befo're the goods wore received, and replied to plaintiffs, reminding them of their letter, and notifying them tbat they would receive only a part of the pins, and, if the offer was not accepted, they would not receive any. The goods were shipped on the 21st of July, 1891. The present abstract does not inform us when the goods reached Attalla, the shipping depot, on the Alabama Great Southern Railroad, of the defendants. The abstract contains the following statement of the evidence : “A man by the name of Ambersoiiwas hauling freight from Attalla to their place of business at Murphree’s Valley, and he received these pins from the freight agent at Attalla, and hauled them on his wagon to the storehouse door of the defendants. When the defendants learned that Amberson had the pins on his wagon, they refused to let him unload them at their place of business, and the pins were not unloaded. The defendants refused to pay Amberson for hauling the pins, or the freight. The last seen of the pins, they were in the possession of Amberson.” On this evidence, and on the admission of the defendants that they ordered five great gross of pins, the plaintiffs contend that they were entitled to the affirmative charge, at least so fax* as to x’ecover for the value of the pins admitted to have been ordered. In view of all the evidence, the court did not err in refusing to instruct the jury to this effect. The evidence is insufficient to show, affirmatively, a delivery, and acceptance of any pins by the defendant, or any power or privilege to separate, and receive less than the whole quantity shipped. This was necessary to fix a liability under the common counts. The genuineness of the order for pins, introduced by plaintiff to support the complaint, was controverted by defendants, and the evidence is in conflict on this point. It was therefore necessary to show that defendants received some benefit, or the article, to support the implied agreement to pay for pins, upon which the common counts depended. The defendants did not make amotion for a new trial, and we do not consider any question except those raised by the assignments of error. In these we find no error, and the judgment must be affirmed.

Affirmed.