Brown v. Master , 111 Ala. 397 ( 1895 )

'HEAD, J.

The nature of this action appears in the report of a former appeal. — 104 Ala. 45 L. The storehouse was leased’to the plaintiff, Miss Master, by J. K„ Glennon as agent of the defendant, Mrs. Brown. The plaintiff was permitted to give evidence, through witness, Clarence Blalack, that before the attachment was sued out, he, the witness, went with his father, K. P. Blalack, to see Mr. Glennon about his father obtaining a transfer of plaintiff’s lease to himself for the remainder of her term, and that his father “wanted to get the lea-e for the balance of the year and twelve months afterwards, and it was satisfactory between him and Mr. Glennon when 1m left,” and Mr. Glennon said it would be satisfactory to him. The undisputed evidence, shown by the cross examination of Glennon by the plaintiff, was that no such interview was ever communicated to the defendant. It is true Glennon testified that when Mrs. Brown came to see him he told her what information he liad, and how lie got his knowledge of the goods being sold, or bargained for, and that they were to be sold in a lump, and the other things he had learned in reference to Miss Master. He stated he got his information from some of plaintiff’s own relatives; but at the same time, on cross examination, his testimony was positive to the effect that no such interview occurred between=him and R. P. Blalack as that testified by ClarenceBlalack,and consequently,that no such statement was communicated byhim to the defendant. When the case was here before, we said the knowledge of Glennon, and his efforts to obtain information, not made known to the defendant before the attachment was sued out, were immaterial and irrelevant to the controversy. So far as the present question is concerned, the testimony of Glennon amounts to a specification of the information he communicated to defendant, and whether his or Clarence Blalack’s testimony be accepted as true, there is yet nothing tending to show communication of the interview to defendant. The attachment was not sued out by Glennon for the defendant. She did it herself. He was not her agent for that purpose. True he gave her and her attorney certain information upon which they acted, but she is .affected only by the information he gave, not by that he possessed but did not give. The. court erred in admitting the testimony of Clarence Blalack. <•

Whether or not the defendant, in suing out the attachment, acted in good faith upon the advice of counsel given upon a full and fair statemen't to the counsel, of the facts known to the defendant, or which, by the exercise of reasonable diligence she ought to have known, was a question for the jury and not for the court.

Proof of the matter hypothesized in charge No. 20 requested by defendant, was not indispensable to a recovery by plaintiff, under the second count of the complaint. Independent of those facts a complete cause of action was alleged in the count, of which such facts were not descriptive or essential facts. The plaintiff was at liberty to prove the matter in question, in aggravation of damages.

There was no error in giving charge 4 requested by the plaintiff. It does not require the jury to give vindictive or punitive damages but merely authorizes it. Whether such damages ought to have been given or not was within the sound discretion and sense of justice of the jury.

There was no error in the refusal of either of the charges requested by defendant.

Reversed and remanded.