Adams Hardware Co. v. Wimbish, 78 So. 901

Adams Hardware Co. v. Wimbish

78 So. 901 | Ala. | 1918

This suit was based on a promissory note made by the defendant for the purchase price of a light plant. Defendant interposed special pleas of breach of warranty, to which plaintiff replied that:

"The contract with the defendant is in writing, and the warranty in said written contract is the only warranty as to said lighting plant that was made by the plaintiffs, or by any person authorized to bind the plaintiffs."

There was verdict and judgment for the defendant.

The plaintiff introduced in evidence the defendant's note, and rested. This note did not contain the written warranty the subject of plaintiff's replication. Defendant Wimbish, as a witness in his own behalf, was asked, "I will ask you, Mr. Wimbish, what the agent said to you at the time about the plant being installed in a workmanlike manner?" to which question objection was made, on the ground that the contract was in writing. No exception to the adverse ruling of the court was taken. The witness was then asked, over the plaintiff's objection: "After it was put up, I will ask you how it operated?" No grounds for this objection were assigned; being a mere general objection, it presented nothing for review. The evidence was not manifestly illegal and irrelevant, and incapable of being rendered admissible in connection with other evidence. Rule 33, Code of 1907, vol. 2, p. 1527; Sanders v. Knox, 57 Ala. 80, 83; Bates v. Morris, 101 Ala. 282, 13 So. 138; Bufford v. Little, 159 Ala. 300, 48 So. 697; Knight v. State, 160 Ala. 58, 49 So. 764; Rutledge v. Rowland,161 Ala. 114, 49 So. 461; Stowers Furniture Co. v. Brake,158 Ala. 639, 48 So. 89; Wallis v. Rhea, 10 Ala. 451 (and citations to first headnote); Ingles v. State, 13 Ala. App. 184,68 So. 583; Salmon v. Salmon, 13 Ala. App. 510,69 So. 304; Stamps v. Thomas, 7 Ala. App. 622, 62 So. 314.

In regard to permitting the defendant to ask, "What was said by Mr. Horne?" (plaintiff's agent), and the witness to reply, "Mr. Horne said it was a bum job of piping," the record discloses that no objection was made to the question when propounded; and therefore no reversible error was committed in the refusal to exclude the same, the answer being responsive. Not having objected to the question when propounded, the plaintiff was put in the attitude of experimenting as to what the witness would answer; if witness' answer was favorable, he would accept it; if unfavorable, he would move to exclude. This court will not permit a party to experiment, and, finding the result against him, thereupon successfully except to the ruling of the trial court. St. L. . S. F. R. R. Co. v. Sutton,169 Ala. 389, 55 So. 989, Ann. Cas. 1912B, 366; Stowers Furniture Co. v. Brake, supra; B. R., L. P. Co. v. Chastain,158 Ala. 421, 48 So. 85; West Pratt Co. v. Andrews, 150 Ala. 368,43 So. 348; Southern Railway Co. v. Leard, 146 Ala. 349,39 So. 449; Tutwiler, etc., Co. v. Nichols, 146 Ala. 364,39 So. 762, 119 Am. St. Rep. 34; McCalman v. State,96 Ala. 98, 11 So. 408; Billingsley v. State, 96 Ala. 126,11 So. 409.

The sixth assignment of error is not insisted upon by appellant in brief, and for this reason need not be considered. Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158.

The judgment of the circuit court is affirmed.

Affirmed.

ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur. *548