Elliott v. Stocks

67 Ala. 336 | Ala. | 1880

STONE, J.

— Many of the questions in this cause are settled by our rulings in the case of Elliott v. Stocks & Bro., at the present term.

The instrument under seal of January 1st, 1874, is the written evidence of the contract by which the defendants agreed to operate the property known as the Cornwall Iron Works, in joint adventure. Before that agreement was consummated, the ownership of the property was in Cothran. That agreement let in Marshall, McCullough, and McElwain. Before reading it in evidence, it was necessary to prove its execution. It purported to be signed by Cothran and McCullough in person, with scrolls for seals annexed, and the signature for Marshall was as follows : “Robert Marshall, by his attorney in fact, Thomas McCullough, [Seal].” McCullough was called to prove the execution, and he proved that both Cothran and himself executed it in person. He proved that he executed for Marshall, and that he had authority to do so. On cross-examination he was asked if his authority to execute for Marshall was not in writing. This question was objected, to by plaintiffs, and the court sustained the objection. In this the Circuit Court erred. ' If the authority was in writing, it should have been produced, or its destruction shown, or some other excuse, sufficient in law, given, why it was not produced. And, in any event, it was the privilege and right of the claimant to cross-examine the witness as to the contents of the authority to sign, even if the absence of the writing was sufficiently accounted for. The contract offered in evidence was under seal, and authority to execute and seal it must have been in writing, to be valid. — 1 Greal. Ev. § 269.

The Circuit Court erred in suppressing parts of the depositions of the witnesses, Printup and Bowen. What we said in Elliott v. Stocks & Bro., at the present term, will furnish a sufficient guide to the Circuit Court, on another trial of this case, both as to this question, and the questions raised on the testimony of McCullough.

The charges asked and refused were excepted to in the mass, and hence, to avail the exceptor, it must be shown that each asserts a correct legal principle. Charges 1st, 2d and 8th, each and all, seek to raise an immaterial issue. Whether Smith or Foreehe, or the Tredegar Iron Works, had any interest in the property in controversy, was not raised by the pleadings, and was immaterial to the rights of these parties, as raised by this, record. The 11th charge was rightly refused, because the contract by which Cothran first, and then McElwain, obtained the management of the iron works, did not empower the latter to make a mortgage, or trust deed, binding his co-owners. The 11th charge was rightly refused. The value of the property levied on is a proper subject of inquiry in trials of the right of personal chattels.

Reversed and remanded.