Baker Trotter, 73 Ala. 277

Baker Trotter

73 Ala. 277 | Ala. | 1882

STONE, J.

— 1. This was an action on the case, for damages alleged to have been suffered by the appellant, in consequence of the following note, admitted to have been written by the appellees, and by them delivered to one J. M. Folks: “At Home. ITenry County, Alabama, Nov. 26th, 1879. Mr. Joseph Baker, Present. This will introduce to you Mr. J. M. Folks who is in want of some money. Whatever he tells you, you may rely on it'. T. H. Trotter, J. Z. S. Counerly, Ilosea Powell.’’

The appellant loaned to Folks one hundred and fifty dollars, Folks promising either to execute to the appellant a mortgage upon sufficient property to secure the payment of the money, or to give him a note with personal security. Folks failed to comply with his agreement, and has not repaid the money.

The theory upon which the appellant proceeds is, that the note written to him by the appellees is a guaranty, thereby rendering themselves liable to make good to the appellant any loss he might sustain by reason of extending credit to Folks, although they may have believed, at the time of making the representations, that they were true.

It was said by this court, in Einstein v. Marshall, 58.Ala. 153: “A representation of what is believed to be true, though false in fact, can not, when made by a stranger, confer a right of action.” The law requires that the recommendation, to be actionable, shall assert either that which the party making it knows to be false, or of the truth of which he has no knowledge *281or well founded belief. But a mere representation, by a stranger, of a faot which at the time of making it he believes to be true, can not render him liable for the injury suffered. — Einstein v. Marshall, supra.

The three charges requested by the appellees were clearly in accordance with these views, and the circuit court did not err in giving them. The 1st and 3d charges requested by the appellant and refused by the court assert the reverse of this principle, and they were properly refused.

2. The 2d and 4th charges requested by the appellant relate to matters subsequent to the giving of the note to Folks, and to the loan of the money by Baker. The giving of them could have had no other effect than to divert the attention of the jury from the real issues in the case, and to direct it to matters foreign to the issues, and were, therefore, properly refused.

3. The court did not err in refusing to allow the appellant, as a witness for himself, to testify “that he never would have let Folks have the money but for the note written to him by the defendants.” This testimony was not of a fact, but an inference or conclusion of fact to be drawn by the jury. — Sledge v. Scott, 56 Ala. 202.

4. Evidence of the good character of Folks, offered by the appellees, was properly admitted. It had a tendency to show that the appellees had a well founded belief in the truth of the representations made by them in their letter to the appellant. Whether the representations were or not recklessly made, was a material inquiry in the case, and any evidence having a tendency to throw light upon it was proper and competent.

5. The appellant, on cross-examination, proposed to ask tb'e witness Folks, “If some two years previously, in the Circuit Court of Pike county, in which county he formerly lived, his character was not shown to be that of a hog-thief.” This was objected to, and ruled out. In this the circuit court erred. It was not proposed to prove he had been guilty of the crime, or had been convicted of it. That would have required the production of the record; and, if shown, would have rendered the witness incompetent. — Sylvester v. The State, 71 Ala. 17; Andersen v. The State, 72 Ala. 187. The fact sought to be proved was the character he bore in another county. This, to affect his credibility, not his competency. For this purpose, and on cross-examination, it was admissible.— Childs v. The State, 58 Ala. 349; Ingram v. The State, 67 Ala. 67. If there was danger of the'testimony exerting an improper influence on the jury, that wras a subject for a charge, limiting its effect to the question of credibility. It could not bear on the liability of the defendants, unless knowledge of such bad reputation wras, in some le*282.gitimate mode, carried home to them. — 1 Brick. Dig. 847, §§ 618-19.

Reversed and remanded.