Burgin v. Stewart , 216 Ala. 663 ( 1927 )

This is an action of detinue by the appellants against the appellee to recover two White trucks, and the plea was the general issue, pleaded in short by consent with leave to the defendant to give in evidence any matter that would constitute a defense if specially pleaded. Under the statute the issues thus formed embraced any defense that could be pleaded if the action had been on the debt covered by the conditional sale contract, such as fraud and deceit in the sale of chattels, breach of warranty, payment, and modification of the contract as to the time of payment supported by a valuable consideration. Code of 1923, § 7402; Wood v. Lambert, 207 Ala. 260,92 So. 428; Brown v. Freeman Bynum, 79 Ala. 406; Tabor v. Peters, 74 Ala. 90, 49 Am. Rep. 804.

Under the issues thus formed, much evidence was offered by both parties which proved to be immaterial, as will hereafter appear.

After the plaintiff's second witness, Feagin, had testified fully as to the original cost of the trucks in question, their hauling capacity, the character of use they had been put to, their condition at the time they were sold to the defendant, and their value, he was asked by plaintiff's counsel, on redirect examination, to state "the average life of that character of truck, when put to the ordinary use for which it was intended." The testimony elicited by this question was pertinent only to the question of value, a fact to which the witness had fully testified, and if error was committed in sustaining the defendant's objection, it was error without injury.

The question asked witness Wheeler, on cross-examination, made the basis of the second assignment of error and to which objection of the plaintiffs was overruled, was not answered, and if error was committed in overruling the objection, this was error without injury.

The same observation is true as to questions asked plaintiffs' witness Strickland, on cross-examination, made the basis of assignments of error 4 and 5.

The fact elicited by the question of plaintiffs' counsel to the witness Wheeler, made the basis of assignment of error 3, as to whether "it is not customary for some haulers, in order to increase the amount of work done, to put up sideboards," does not appear to have been material.

While it appears from the testimony of the defendant's witness, Maak, that he was not a mechanic, he had used the trucks in question, had been driving such trucks for 7 years, and had been driving and "keeping up" trucks for 5 years, and the only objection urged against his testimony was that he was not shown to be qualified to testify as to the mechanical condition of the trucks at the time he was using them. We are not of the opinion that this objection was well taken and the ruling of the court here was free from error. McWhorter v. Tyson, 203 Ala. 509, 83 So. 330; Alabama Great Southern R. R. Co. v. Bailey, 112 Ala. 167, 20 So. 313.

The only objection to the question, "Tell the jury whether or not one of them broke," asked the witness Poss by defendant's counsel, and the answer, "One of them broke," was that "It is immaterial and irrelevant and incompetent." The rule is that:

"A general objection of this character cannot be sustained, unless the evidence is manifestly illegal and irrelevant, and apparently incapable of being rendered admissible in connection with other evidence." Sanders v. Knox, 57 Ala. 80; Bufford v. Little, 159 Ala. 300, 48 So. 697; Henderson v. Holmes Dawson,204 Ala. 203, 85 So. 536; Adams Hdw. Co. v. Wimbish, 201 Ala. 548. 78 So. 902.

Looking to the scope of the issues and the wide range taken in the introduction of evidence by both parties and the fact that the defendant had not examined her most important witness, it could not be said at the time this evidence was offered that it was incapable of being rendered admissible by other evidence to follow, and the court will not be put in error for overruling the general objections made by the plaintiffs.

In respect to the other assignments of error, numbered 9, 10, and 11, no ground of objection was stated.

It is clear from the testimony of the plaintiff Burgin that the $750 note, payable May 10, 1925, and the $250 in cash were accepted as the cash payment of $1,000 acknowledged to have been made in the two contracts. This note is not mentioned in either of the contracts as one of the installments secured thereby, and a failure to pay this note did not constitute a default in the payments under the contracts, authorizing the plaintiffs to repossess the property or recover it in this action.

The first installments due on the contracts, under which the plaintiffs claimed, according to the undisputed evidence, fell due June 15, 1925, and as to these the defendant's contention was that for a consideration of $100 paid to plaintiffs on the 10th of June, 1925, the time for payment of these installments was extended for 30 days, and she offered some testimony tending to sustain this contention. This testimony was disputed by the testimony of the plaintiff Burgin; his evidence tending to show that the payment was made on the $750 note, which was then 30 days past due. This was the sole issue submitted to the jury by oral charge of the court, the pertinent paragraph of the charge being in the following words:

"If you find from the evidence that the note was due, and that it was not extended, then your verdict should be for the plaintiffs. If you find that the note was not due by reason of any contract that was made extending the note, then your verdict would be for the defendant."

There was no contention by the defendant that she had paid in full the first installments due on the 15th day of June, under the original contract; in fact, there was no basis in the evidence for such contention. The only theory upon which the defendant could defeat a recovery by plaintiffs was that by agreement between the parties the time of payment of the said installments had been extended.

When charge 8, given for the defendant, is read in the light of the evidence and the issues as limited by the oral charge of the court, it was invasive of the province of the jury in assuming that such agreement had been made, and should have been refused.

Charge 6 gives undue emphasis to certain phases of the evidence, and on another trial should be refused.

For the error in giving charge 8, the judgment is reversed and the cause remanded.

Reversed and remanded.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.

On Rehearing.