Lutterworth & Lowe v. Cathcart , 168 Ala. 262 ( 1910 )

SAYRE, J.

Plaintiff, a corporation, being a nonresident, Messrs. Lowe & Tidwell became security for costs. Judgment having been rendered for the defendant, the court, without motion or judgment against the sureties, ordered that execution issue against them for costs. Appellant, who was plaintiff in the court below, assigns that order for error. There are two equally conclusive reasons why that assignment cannot be sustained in this court. For one, there is no judgment against the sureties to support an appeal, but only an improvident order which the court below will correct on application.—Dow Wire Works Co. v. Englehardt, 136 Ala. 608, 33 South. 817. For the other, appellant cannot be heard to complain of an order, however erroneous, which is not prejudicial to it.—Eslava v. Farley, 72 Ala. 214.

This suit was for the recovery of the contract price of the iron parts of two tram cars sold by the plaintiff to the defendant. Exceptions were reserved to several rulings excluding parts of the testimony of plaintiff’s witness Vvn to the effect that defendant had given no instructions as to how the tram cars were to be shipped, and that they had been shipped by rail and bill of lading forwarded to defendant by mail. Tbe ground of tbe exclusion was that witness’ subsequent testimony disclosed that be had no personal knowledge of the facts in question. If the ground was not well taken, it was nevertheless true that evidence subsequently introduced and the further progress of the trial deprived these rulings of injurious consequences. There was other uncontradicted testimony, as to the competency of which no objection was taken, that the defendant gave no directions whatever as to the shipment of the tram cars, while the defendant, testifying for himself and through the mouths of other witnesses, unreservedly admitted that the articles had been actually received by him, though not delivered according to the contract because, as he contended, they were defective when shipped. Thus any issues upon which the testimony in question may have had a bearing were removed from the case.

Appellant complains that the court admitted the letter dated February 22, 1905, and purporting to have been written by it, without sufficient proof of its authenticity. Some proof of genuineness was requisite, of course. The language of the letter abundantly indicated that it had been written in reply to defendant’s letter of two days before. But authentication by contents alone is insufficient. A rule permitting that would leave parties no safeguard against fabrication. Tbe authorities generally state that the receipt by due course of mail of a letter shown by its contents to be related to another of antecedent date and mailing is sufficient to warrant its introduction in evidence. Such was the case in White v. Tolliver, 110 Ala. 300, 20 South. 97. This rule depends upon the habitual accuracy and promtness of the mails, and th© fact that the tenor of tbe letter as a reply to an antecedent letter indicates a knowledge of the tenor of the antecedent. It is formulateu in 3 Wigmore on Evidence, as follows: “There sectias to be here adequate ground for a special rule declaring these facts, namely, the arrival by mail of a reply purporting to be from the addressee of a prior letter addressed and mailed, are sufficient evidence of the reply’s genuineness to go to the jury.” It is there stated that such a rule — varying slightly in the phraseology of different judges — seems now to he universally accepted. Clearly, defendant failed to bring the offered letter within the rule. The statement of the hill of exceptions is that this letter was “received by defendant.” The fact, of prime importance under the rule, that rlie letter was received through the mails in due course, is not stated. Appellee insists that, although the bill of exceptions contains a statement that the evidence therein set out was all the evidence, it affords indications thát there was other evidence, and that this court, construing the bill most strongly against the party excepting, and indulging in all reasonable presumptions in favor of the trial court in order to sustain the judgment appealed from, will presume that there was evidence going to show the authenticity of the letter. After an examination of the bill of exceptions, we do not feel justified in adopting the proposed interpretation. Appellee’s ai'gument in this connection is based upon the following state of the statutory record, the bill of exceptions: “The plaintiff (it recites) introduced the deposition of one N. C. Vyn, in its behalf, and the interrogatories and answers in said deposition were as follows:” Then follow interrogatories and answers numbered from 1 to 37; several numbers being omitted. In order to assume that there were interrogatories and answers corresponding to the 03nitted numbers, it would be necessary to contradict the bill of exceptions in two particulars, viz., that paid; of it which states that the evidence set out- was all the evidence, and that part of it which states that the interrogatories and answers introduced were the interrogatories and answers set down in the transcript. We think rather that the statements of the hill of exceptions are unambiguous and must be allowed to stand, and that, if any presumpt'ons whatever are to be indulged, we must presume that the interrogatories and answers were not consecutively numbered, or that all of them, were not offered or received in evidence. The letter put forward, as coming from the plaintiff, what perhaps the jury was asked to consider as a lame and impotent account of how the wheels came to be defective, and afforded basis for the argument that the plaintiff, when delivering to the carrier, did not take the usual precaution for insuring safe delivery to the buyer, as it was its duty to do, and that the defects in the wheels were caused by this negligence on the part of plaintiff. Indeed, the appellee insists that it convicts the appellant of gross negligence. If the seller failed to put the goods “in such a course of conveyance (by proper preparation for shipment, if the goods needed any preparation) as that, in case of loss, the defendant might have his indemnity against the carriers,” such a delivery would not be the delivery contemplated by the contract. — Benj. on Sales (7th Ed.) § 694. We cannot know judicially whether these articles required any preparation for shipment, nor will we be understood as intending any intimation in respect to the merit of this contention in fact. The letter was not properly authenticated, and its admission in evidence was prejudicial error for which the judgment must be reversed.

If we have not misconceived the record, it shows that the contested questions were whether the wheels which were a part of the shipment were defective when they left the possession of the plaintiff or were injured while in transit, and whether defendant had kept them an unreasonable time before returning them to the plaintiff. This last was, indeed, nothing more than a fact of evidential bearing upon the first. And, further, the question was whether the tram cars had been properly prepared for shipment. We think it cannot be said that there was no conflict in the evidence on these points. Charge 6, requested by the appellant, was properly refused because it did not adequately deal with this phase of the case. It omitted all consideration of the charged negligence in preparing the cars for shipment as the •cause of the defects. A charge need not undertake to deal with the whole case. It may state the law applicable to a phase of the case, if it does not make the whole case turn upon it; but the phase stated must be adequately stated, and stated without omissions which may lead the jury to infer erroneously that the omitted facts are of no consequence. This charge was defective for that the jury might have inferred from it that the question of delivery was not to be affected by the evidence of negligent preparation for the shipment and defects ensuing in consequence thereof.

We have said enough to indicate our views of those assignments of error which have been argued by counsel.

Reversed and remanded.

Dowdell, C. J.,. and Anderson and Evans, JJ., concur.