94 Ala. 159 | Ala. | 1891
— The suit is on an account for goods which the plaintiffs claimed were sold by them to Mrs. Julia Ryan, deceased, the intestate of the defendant. The defendant contended that his intestate had not purchased or ordered the goods, and did not become responsible for the price thereof. There was evidence tending to show that Mrs. Ryan came to plaintiffs’ place of business, and stated to a member of the firm that she was going to put her son, James Ryan, in her store, to run it and take charge of it for her, and requested plaintiffs to let him have whatever goods he wanted, as it was her business. Against the objection of the defendant, the plaintiffs were permitted to introduce evidence to show that, when James Ryan came into their store on a subsequent day, a member of the plaintiff firm who was waiting on him in selecting and ordering goods, on being called aside by a salesman who was standing off in the store, and asked if he was selling the goods to James Ryan, stated to the salesman that he was not selling the goods to James Ryan, but to his mother, Mrs. Julia Ryan. This conversation was not in the presence of Mrs. Ryan, nor was it brought to her knowledge in any way; and the statement as to who was the purchaser of the goods was not made in the course of any transaction with her. So far as the declaration could possibly be regarded as referring to any dealings of the firm directly with Mrs. Ryan, it was merely an allusion to a past transaction. She could not be bound by what one of the plaintiffs may have said to a third person who was a stranger to her. So far as she was concerned, the statement was merely hearsay, and upon no possible theory was it admissible against her, or against the defendant as the administrator of her estate. What was said on the occasion mentioned was as inadmissible against the defendant as any conversation that one of the plaintiffs may have had at any other time with a stranger to Mrs. Ryan. It is not conceived by what method of reasoning the statement could be regarded as part of the res gestes of the transaction had with Mrs. Ryan on a former day. — Stallings v. Hinson, 49 Ala. 92; Martin v. Hardesty, 27 Ala. 458; Lavender v. Hall, 60 Ala. 214; Smith v. Flagg,
It is suggested for the appellee, that there was a failure to specify any particular ground of objection to the admissibility of this evidence. The illegality of the evidence was apparent upon its face; to ascertain this it was not necessary for the court to look to any fact that was not stated by the witness in detailing the conversation. No casting around to discover a-ground of exclusion was required. It was obvious, without reference to any extrinsic fact, that Mr. Richards’ statement to the salesman in his store was mere hearsay so far as Mrs. Ryan was .concerned. In such case, the court should sustain the objection without demanding a specification of what is already patent. The general rule requiring the ground of objection to be stated did not apply. — Richards v. Bestor, 90 Ala. 352; Pool v. Devers, 30 Ala. 672; Cunningham v. Cochran, 18 Ala. 479. This case was tried before the adoption of the rule of practice now governing the mode of reserving exceptions to rulings on the introduction of testimony. Under that rule, the trial judge can, in all cases, call on the counsel to specify grounds of objection. See Rule printed in 90 Ala. The evidence as to the statement referred to should have been excluded.
The witness Richmond was not a party to the suit, nor was there evidence to show that he was interested in the result thereof. ITe did not come within any of the exceptions to the competency of witnesses, and there was no error in the refusal to exclude his testimony as to what occurred in the interview between one of the plaintiffs and the intestate of the defendant., — Code of 1886, § 2765; Huckaba v. Abbott, 87 Ala. 409; Miller v. Cannon, 54 Ala. 59.
There was no error in refusing to give the charge in writing requested by .the defendant. The suit is against the defendant in his representative capacity, and not as an individual. In the caption of the complaint the defendant is described “as the administrator of the estate of Julia Ryan, deceased.” In each count of the complaint the cause of action stated is an account against the intestate of the defendant, and the defendant is charged as her personal representative. — Harris v. Plant, 31 Ala. 639 ; Watson v. Collins, 37 Ala. 587; Christian v. Morris, 50 Ala. 585; Rhodes v. Walker, 44 Ala. 213. But the fact that defendant was sued as administrator does not necessarily impose upon the plaintiff the duty of proving that the defendant was such' representative. Such proof is not required, unless the pleadings present an issue upon that
The other assignments of error are in reference to matters which are not likely to be presented on another trial. As they do not bear upon the merits of the controversy, it is unnecessary to consider them. For the single error above noted, the judgment must be reversed.
Eeversed and remanded.
