87 So. 191 | Ala. | 1920
The report of a former appeal in this cause may be seen in
Over the consistently repeated objections and exceptions of the defendant appellees were allowed to introduce evidence tending to show that E. T. Schuler, president of the defendant corporation, had been appointed and had served on a committee to raise the subscription bonus of $150,000 to induce the Southern Iron Steel Company to remove its plant from Ensley to Alabama City — the note in suit constituting a part of the subscription — that he importuned a number of people in Gadsden to make subscriptions to the fund; that he represented to them that it would be greatly to their interest to subscribe; that it was up to them to make large subscriptions; that a committee of the Chamber of Commerce of the city of Gadsden would report whether the Southern Iron Steel Company had complied with their contract, and more of the same general character. The cause was tried on several pleas, in short by consent, and an agreement that any other legal defense, not requiring a plea verified by oath, might be given in evidence, and the suggestion in brief is that the evidence in question would have been relevant and material to several possible defenses. The admission of this evidence cannot be justified as relevant to any issue made by the pleadings, nor does it occur to us that an issue might have been raised to which this evidence would have been relevant, save, perhaps, on a plea of non est factum, by which we mean a plea going to the authority of Schuler to sign the corporate name or the fact that he did so sign; but it was further agreed that there should be no such issue in the case. So, then, the court erred in these rulings; nor do we think it can be affirmed with any certainty that no prejudice resulted. On the contrary, the effect was to present the defendant *600
to the jury as seeking to avoid an obligation just such as it had been busy in inducing its fellow citizens of Gadsden to assume. Its strong tendency was to prejudice defendant in the eyes of the jury and in the absence of countervailing proof we can only assume it acted accordingly. Maxwell v. State,
But after this evidence had rested in the mind of the jury for what must have been a long time and, to quote the bill of exceptions —
"after the testimony had closed, counsel for plaintiff made the following statement to the court: 'We withdraw all the testimony showing that Mr. Schuler was a member of the Commerical Club of Gadsden, or of the Chamber of Commerce, also the evidence that was offered showing that he went around with the committee soliciting subscriptions. Also we withdraw the evidence to the effect that a committee was appointed by the Chamber of Commerce for the purpose of ascertaining if the steel company had complied with its contract in removing the wire and rod mill to Alabama City. We withdraw these several batches of evidence to clear the case of those questions as to some of which our friends have made so much noise.' "
Whereupon counsel for defendant moved that the case be withdrawn from the jury "after this testimony has been in and had its effect upon the jury," which motion the court overruled, saying:
"Gentlemen of the jury, you remember the testimony with reference to the committee appointed by the Chamber of Commerce, and the investigation made by that committee, and that there was a report made by that committee, and also the testimony tending to show that Mr. Schuler solicited contributions towards the $150,000 raised by this committee. All the evidence with reference to those subjects is withdrawn, and you will not consider it in your deliberations when you get to your jury room for any purpose. As much as you can, forget that sort of evidence was offered in the case."
This court has always regarded with caution the practice of admitting illegal evidence and afterwards excluding it (Green v. State,
Evidence to the effect that the population of Gadsden had increased since the removal of the steel plant, that travel on the defendant's car line had increased, that the use of electric lights had increased, that defendant operated more cars, and that at times the cars were crowded, was all irrelevant. Its admission cannot be justified as in support of the plea of ultra vires. It may be assumed that defendant's purpose in the execution of the note in suit was to increase its earnings by bringing about the results here offered in evidence, and upon the former appeal it was held that such an engagement was within the corporate power of the defendant; but the fact that such results did follow tended no more to prove corporate power than results of a contrary sort would have tended to prove the absence of the power in question.
Nor did this evidence tend to sustain either of the pleas of failure of consideration, as those pleas were given shape and complexion by the undisputed contract shown in evidence. A favorable effect upon the volume and profit of defendant's business, it may be assumed, was anticipated as the ultimate result of the steel company's engagement, but that engagement, and not ultimate results, was what defendant bargained for. It appeared very clearly as the result of all the evidence that the sole consideration for the note in suit was the steel company's promise to remove its entire rod and wire mill from Ensley, to reconstruct the same upon an enlarged scale at Alabama City, and put it into operation, and the only litigable issue was whether the steel company had substantially performed its contract. However, error cannot be affirmed of the ruling here at issue for the reason that these pleas were pleaded in short by consent, and at the time of these rulings the court was not in a position to say that defendant's pleas might not in the evidence be so presented as to make proof of these facts admissible.
The witness Schuler was president of the defendant corporation. He was also an officer of the Coosa Land Company, and that company had also subscribed to the fund to induce the removal of the steel, or rod and wire, plant. The witness, by his testimony, had attempted to establish a partial failure of the consideration for the note in suit, in that, to state its general effect, the entire plant had not been removed, and that he had all along been aware of that fact. On cross-examination *601
examination he was required to answer whether he had paid the Coosa Land Company's note for it. We derogate nothing from the rule stated in Ricketts v. Birmingham Ry. Co.,
We do not see that the testimony required of the witness Schuler in reference to the "indemnity agreement," set out on page 114 of the transcript, was relevant to any issue in the cause.
So of the letter in which defendant gave notice that it would not pay its subscription notes, "to which the company's name was signed by him [E. T. Schuler] without authority, unless some reasonable settlement is made of the account of our [defendant] company against the Southern Steel Company for current furnished for light and power." Defendant's failure to place its refusal to pay on the ground that the steel company had not performed its contract in its entirety afforded no ground for an inference that no such ground existed at the time of the trial, for the reason that, when the letter was written, the steel company, under its contract, still had time within which to remove its plant.
At the first trial defendant had filed a plea of non est factum, verified by oath. The trial under review was affected by an agreement in writing stipulating, inter alia, as follows:
"It is also agreed between the parties that E. T. Schuler, as vice president of the defendant corporation, had the authority of said defendant corporation to make, execute, and deliver the note sued on, and the contract constituting the consideration of the said note, and that, his authority being hereby admitted, that question shall not constitute an issue in this case."
Plaintiffs were allowed, first, to draw out from the witness Schuler on cross-examination the fact that he had sworn to the plea, and, second, that he had signed the note in suit. This was error. It has been uniformly held that previous contradictory statements, sworn or unsworn, cannot be given in evidence unless they relate to some matter material to the issue on trial. Steinhardt v. Bell,
Speaking to the point raised by the admission of the letter in which defendant gave notice that it would not pay its subscription notes, we indicated an opinion, citing authorities, which upholds the trial court in charging the jury that the steel company's obligation was, or would have been, discharged by a substantial performance of its contract to remove its plant, meaning, in the peculiar circumstances of this case at least, full performance according to the fair intent of the contract. Hartsell v. Turner,
The witness Forsythe testified to the substantial accuracy of the diagram showing the plant at Ensley superposed upon a diagram of the plant after removal to Alabama City, and it cannot be said that this diagram was irrelevant or immaterial to the issue whether the steel company had fully and substantially performed its contract. There was therefore no error in its admission. So, too, in respect to the inventory admitted over defendant's objection.
We think the trial court correctly interpreted the contract as providing for the removal of the plant from Ensley to Alabama City within a reasonable time, and properly submitted that question to the jury.
Whether the jury should be taken to a view of the plant at Alabama City rested in the discretion of the trial judge. Witnesses had described the plant at Alabama City, and it was competent to have the jury test their statements by a view of the plant, and this is true though the only real contest between the parties was as to the steel company's removal of the plant according to contract, and though, as to that, an inspection of the plant at Alabama City without an *602 opportunity of comparison with the plant at Ensley was of negligible value.
For the errors shown in the admission of evidence, the judgment is reversed; the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and BROWN, JJ., concur.