Fuller v. Gray, 124 Ala. 388

Fuller v. Gray

124 Ala. 388 | Ala. | 1899

HARALSON, J.

— Suit upon the common counts for a debt claimed by William Gray, plaintiff, against A. T. Fuller, defendant.

The point of contention in this case is, Avhetlier or not. the goods, the sale of Avhich is the foundation of the action, Avere sold to defendant, Fuller on his credit alone, or to Whatley. The decisive question in such cases is,— To Avliom Avas the credit given? If the goods Avere sold on the sole credit of the defendant, his promise is original, and not Avithin the statute; but if any credit Avas given to the person to Avhom the goods Avere delivered, the promise is collateral and within the statute. Boykin v. Dohlonde, 37 Ala. 577; Webb v. Hawkins L. Co., 101 Ala. 630; Fuller v. Gray, 116 Ala. 238.

There Avas no conflict as to the fact that the goods were delivered to Whatley. The plaintiff’s' evidence tends to sIioav, that this Avas done upon an agreement Avith-defendant and upon his direction, he being responsible for them, and that he desired the account kept against Fuller and Whatley for his, Fuller’s, convenience. The evidence for defendant tended to sIioav, that he' never made such an agreement, and gave no such directions. The evidence also tended to sIioav, that plaintiff had instituted a suit before a justice of the peace against defendant and Whatley jointly, to recover the amount of *390this account, but the judgment entry in the justice’s court shows, that on the trial of said cause, no pleas having been 'filed by defendant, Whatley, the suit against him was withdrawn on motion of plaintiff’s attorney and a judgment by default was taken against defendant, Fuller, for the amount of plaintiff’s demand and costs, from which judgment an appeal was taken to the circuit court by defendant. When the case appeared in the circuit court on this appeal by Fuller, it appears to have been docketed as Wm. Gray v. B. W. Whatley, A. T. Fuller, — as it originally stood in the justice court, — and on the trial of that cafise in the circuit court at the Fall Term 1895, it appears from a judgment entry therein, entered on September 20th of that year, that judgment was rendered against both defendants for the amount of plaintiff’s demand and costs; but it reasonably enough appears. that this judgment was rendered against Whatley by mistake, since the case had already been discontinued as to him in the justice’s court, and he Ayas no longer a party to the suit in the circuit court, carried there by 'Fuller, on his oavu appeal from the judgment rendered against him alone by the justice.. A motion was made for a new trial, by whom it is not shown, which was granted, and the cause Avas reinstated on the docket as pending. It'again appears, that a feAV days thereafter, — on the 27th September, 1895, — the plaintiff took a non-suit in the case. AfterAvards, on the 11th day of October, 1895, this suit Ayas commenced in the circuit court on the same claim that was- involved in the suit before the justice of the peace, in Avhich, on appeal by defendant to the circuit court, the plaintiff took a non-suit.

One Oorprew, the book-keeper for plaintiff, was examined by him, and stated that he brought the suit in the justice’s court. The plaintiff asked him to “State what Gray said to you about bringing the suit on the account in the justice’s court, when he instructed yon to bring the suit?” Defendant interposed a general objection to the question, which the court'overruled. The witness replied, “1-Ie told me to make out the account and sue A. T. Fuller. I carried it to Mr. Davenport, the justice of the peace, and told him to bring suit against Fuller.” There Avas no error in the admission of this *391evidence, and in refusing to exclude it. It tended directly to sustain plaintiff’s replication. If tlie justice instituted the suit contrary to instructions, and the manner of its bringing ivas unknown to plaintiff, he certainly could not be estopped to show a mistake ón the part of the justice in bringing the suit, especially as he had replied his ignorance of the manner in 'which the suit was brought, and defendant had taken issue on the replication. — Fuller v. Gray, supra. This ruling applies alike to the 3rd assignment of error. Nor ivas there any error in allowing the appeal bond of Fuller to be introduced. It tended to disprove defendant’s 3rd plea, and to show that no judgment had been rendered against Whatley by the justice.

The 4th and 13th refused charges of defendant, were argumentative and misleading. They as well as the other charges refused, ignore entirely any reference to the facts set up in plaintiff’s replication, upon which issue was joined, — and which the evidence tended to establish, — and are predicated upon the defendant’s pleas alone, without regard to said replication.

Finding no error in the record, the judgment must be affirmed.

Affirmed.