Patterson v. Vest

The strenuous insistence is made that plaintiff's affirmative instruction should have been given on written request. The testimony of the tenant, Stracener, presented contradictory tendencies or the basis of such reasonable inference in evidence against him who requested the affirmative charge — a jury question of indebtedness vel non of tenant to landlord at the time when the cotton was bought or received by the defendant. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135. Contradictory tendencies of evidence may occur in the testimony of one witness as to direct and cross examination. Jones v. Bell, 201 Ala. 336, 77 So. 998. Affirmative instruction was properly refused.

2. Refused charge No. 2 fixed the date for rental at October 24, 1923, when the evidence shows the cotton was received on October 26th. The charge ignored tendencies of evidence though the plaintiff unconditionally authorized the tenant to sell the cotton produced by the tenant, for 1923, on rented lands of the plaintiff. It furthermore disregarded the tendency of evidence as to revocation of authority to sell. However, the revocation of authority to sell the cotton was given at plaintiff's request in the two charges we designate as A and B. There was no error in refusing plaintiff's requested charges Nos. 1 and 2.

The same tendencies of evidence authorized the giving for defendant charges challenged by motion. The jury had the right to look to the previous course of conduct of the parties to determine the right vel non of the tenant to sell the crop, and also to the testimony of plaintiff tending to show revocation of the right of sale and notice to defendant thereof. A jury question was presented as to these issues of material fact. This is aside from the contradictory evidence of indebtedness vel non of the tenant in view of the failure of plaintiff to produce his books and his explanation of how the account was kept.

Charges given at the request of the defendant, Nos. 1, 2, and 7, were proper under the issues presented and the reasonable tendency of the evidence, and there is no error in the giving of the same.

We find no reversible error in overruling the motion for a new trial. N.C. St. L. Ry. Co. v. Crosby, 194 Ala. 338,70 So. 7. The question of consent to the tenant to sell the cotton and the contradiction as to the indebtedness of tenant was properly considered in the light of plaintiff's failure to produce his accounts. Plaintiff's statement of the manner in which he kept the accounts and the whereabouts of his books at the trial was as follows:

"The book containing the first part of Stracener's account is at home. I did not bring it with me. I knew that this account was involved in this suit.

"Defendant then offered in evidence page 228 of plaintiff's ledger, which was as follows:

"G. H. Stracener. 1923.

Sept. 1st. Bal. old ledger, page 231, $571 94 Sept. 4th. Blotter page..........343, 10 Sept. 5th. Blotter page..........350, 35 Sept. 11th. Blotter page.........376, 60 Sept. 14th. Blotter page.........392, 1 95 Sept. 18th. Blotter page.........410, 05 Sept. 18th. Blotter page.........412, 1 10 Sept. 19th. Blotter page.........414, 90 Sept. 21st. Blotter page.........424, 75 Sept. 21st. Blotter page.........428, 2 60 Sept. 27th. Blotter page.........447, 2 50 Oct. 10th. Blotter page..........492, 3 55 Oct. 20th. Blotter page..........530, 2 75 -------

$571 63

"Credits.

1923.

Sept. 1st. By cash........................ $1 90 Sept. 6th. Time, E. H. Stracener.......... 45 Sept. 20th. Time, E. H. Stracener......... 2 10 Sept. 20th. Time, E. H. Stracener......... 7 80 Sept. 22nd. Cr., blotter page 430......... 2 50 Oct. 18th. Cr., blotter page 522.......... 85 Oct. 19th. Cr., blotter page 526.......... 90 00 Oct. 19th. Cr., blotter page 526.......... 46 64 Oct. 19th. Cr., blotter page 526.......... 57 60 Dec. 4th. By amt. to balance.............. 378 30 571 63 ------ ------ Dec. 4th. To bal......................... $378 30

1924.

Jan. 18th. Feeding stock.................. $ 9 00 Jan. 18th. Gathering corn................. 38 00 ------ ------- $425 30

Jan. 18th. Cr. by error................... $ 2 50 Jan. 18th. Cr. by cotton.................. 89 37 Jan. 18th. Cr. by mule, wagon, and cow......................... 115 00 Jan. 18th. Cr. by 84 bu. corn............. 92 40 By amt. to balance.......... 125 03 425 30 ------- ------ To balance............................. $125 03"

The page of the account exhibited by the record, page 228, has "1923 Sept. 1st, Bal. old ledger, page 231, $571.94," etc. The burden was upon plaintiff to show to the satisfaction of the jury the amount of the indebtedness and the credits entering into the just and true balance, if such was due.

The judgment is affirmed.

Affirmed.

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