Madison County Fair Ass'n v. Riggins

BRICKEN, P. J.

Appellee, Mrs. Riggins, sued the Madison County Fair Association for the breach of an alleged contract embodied’in a letter from defendant’s secretary to plaintiffs as follows:

“Huntsville, Alabama, August 3d, 1923.

“Mrs. Herbert Riggins, Huntsville, Alabama— Dear Mrs. Riggins: The committee decided Friday night for the pageant, and that it might be put on by you as follows:

“The association to furnish the grounds and grand stand as they are for the occasion and to furnish band and free act.

“You are to furnish all talent and all equipment of all kinds, and all other expense incident to the occasion, except to change and arrange the grounds for that night, and the care and attending to the grand stand.

“Expense incident to change and arranging of the grounds for that night, and the care and attention to the grand stand to be defrayed first from the proceeds of the grand stand receipts.

“After the expense incident to the grounds and grand stand per above are first deducted from the grand stand proceeds gross, then the balance net to be divided 50 per cent, each, to you for your furnishing all talent and everything and putting on the pageant, and to fair association for their part.

“The charge for the grand stand to be 25 cents.

“You to attend to all the details of this pageant, relieving the management of having to bother with same, as far as it is possible to do.

“You may start publicity of your pageant at any time.

“Yours very truly,

“D. C. Finney, Secretary.”

All counts in the complaint were eliminated by the charge of the court, except the fourth and fifth counts added by way of amendment.

The defendant pleaded the general issue in short by consent, and the jury returned a verdict in favor of the plaintiff for $351.52, and the defendant brings the case here for review.

We are of the opinion that no error was committed in allowing the witness Pierce to give his judgment as to the number of people in the grand stand, or in declining to allow the witness to testify that the article in the Huntsville Times was published by authority of Mrs. Riggins. If she, in fact, authorized its publication, it did not appear that the defendant concurred therein, and a mere publication by her, without more, would not modify the contract between the parties.

Our construction of the contract is that the duty rested on the fair association to collect the admission charge of 25 cents and no error was committed in declining to allow the witness Finney to testify that Mrs. Riggins agreed to collect it.

Neither can error be imputed to the trial court in declining to allow the defendant to show that no money was turned over to its secretary for admission to the grand stand on the night of the pageant. It was immaterial how it happened that the witness Finney put Mr. Robertson on the grand stand, if he did so, and no error was committed in sustaining the objection to that question. /

The record does not affirmatively show that the exception reserved to that part of the charge of the trial court made the basis of the ninth assignment of error was reserved in the presence of the jury and before the jury retired. The bill of exceptions will be construed most strongly against the appellant.

The two charges requested and refused were properly refused. The case was fairly submitted to the jury under an able charge by the trial court, more favorable in some aspects to appellant than was its due.

No error appearing, the judgment of the circuit court will stand' affirmed.

Affirmed.