Fox v. Baggett

Smith, J.,

delivered the opinion of the court.

If the evidence introduced by appellant in the court below be true, he paid for more cotton seed cake than he received, and, consequently, he is entitled to collect from appellee the excess so paid by him. It is immaterial that the cotton seed cake which was shipped loose in cars was sacked by appellant before it was weighed, and it is immaterial that it was removed from the cars in which it was originally shipped before it was delivered to appellant at Shipside, for it sufficiently appears that all of the cake which reached New Orleans was sacked and weighed by appellant.

It may be that some of the evidence contained in the two depositions introduced in the court below by appellant is hearsay, as to which we express no opinion, for the reason that, since no objection of any character to these depositions, or any portions thereof, was interposed in the court below by appellee, this defect, if such there is, in the evidence was waived. Had a seasonable ■objection been interposed, tbe deposition of persons baying actual knowledge of tbe matter could bave been taken.

Tbe court therefore' erred in granting to appellee tbe peremptory instruction. Reversed.