Georgia Cotton Co. v. Lee
72 So. 158
Ala.
1916
Check Treatment
THOMAS, J.

The plaintiff sought recovery on a sale of 430 bales of cotton for its underweight and its billing at a lower grade than its true grade. These issues were presented by appropriate counts, to which the general issue was pleaded by the defendant.

(1) Assignments of error numbered 1 to 6, inclusive, challenge the right of witness Foy, who acted for plaintiff in making the sale, to give the conversations leading up to the sale and its consummation by delivery. Foy had testified that he had personal knowledge of the transaction, and was acting for plaintiff; that he held the cotton receipts, and sold to defendant company. It was competent for the witness to testify to the conversations with defendant and its agent in making the sale and delivery of the cotton and in receiving payment of the purchase price therefor. The testimony tended to show that the cotton was bought by the defendant, and not by Doughtie, and that Doughtie was acting as defendant’s agent in making the purchase.

(2) The draft on defendant for the purchase price was collateral to the issues — of underweight and undergrading — and its production was not necessary. — Shepherd v. Sartain, 185 Ala. 439, 64 South. 57; Phillips v. Pippin, 4 Ala. App. 426, 58 South. 111; Fowler, et al. v. Pritchard, et al., 148 Ala. 261, 41 South. 667; Griffin v. State, 129 Ala. 93, 29 South. 783; First Nat. Bank v. Lippman, 129 Ala. 617, 30 South. 19; Allen v. State, 79 Ala. 34; Foxworth v. Brown, 120 Ala. 59, 24 South. 1; East v. Pace, 57 Ala. 524; Duffie v. Phillips, 31 Ala. 571; 1 Greenl. Ev., § 89.

(3) The right of defendant, on the cross-examination of Foy, to ask the question, “In discussing the matter with Mr. Doughtie, after the sale was over, didn’t you tell him that you had gotten *602$1,800 more for that cotton than you thought you would?” was denied by the court, which ruling is challenged in the seventh and fourteenth assignments of error. The testimony was not relevant. What Foy thought about the aggregate purchase price of the lot of 429 or 430 bales of cotton held by him as collateral did not tend to prove or disprove the issue being tried. What he thought and what he said to Doughtie did not tend to explain his direct testimony of the facts of the sale to defendant. It was not shown that before and at the time of the sale witness knew the actual weight or grades of cotton, and, in fact, he was uncertain whether the lot embraced 429 or 430 bales.

(4) The question whether Doughtie had an account in witness’ bank in 1912 for the purchase of some cotton was likewise immaterial.

(5) The court properly allowed the witness Moneyham to tell that certain of the cotton was delivered for Lee from witness’ warehouse, and that the weigher for the defendant “called back” or underweighed the cotton two or three pounds to the bale, and that witness thereafter reweighed two of the bales, and found that one bale gained four, and the other six pounds. This evidence tended to support one phase of the complaint. The conditions of the two bales of cotton had not changed; and it was not an experiment to illustrate a tendency of the evidence, but was the statement of a fact that at least tended to show that two bales of the cotton in question had been underweighed a total of ten pounds, and was also corroborative in effect.

The case of Ala. Great So. R. R. Co. v. Burgess, 114 Ala. 587, 22 South. 169, cited by appellee, does not apply to the question raised by this ruling on evidence.

(6) No custom had been proven to prevail in the section where this sale was made, nor was it proven that the sale was made with reference to any custom, to underweigh cotton.— Crandall-Pettee Co. v. Jebeles & Colias Confec. Co., 195 Ala. 152, 69 South. 964. Before the defendant could put the court in error for refusing to permit the questions to be answered it should have informed the court what pertinent matter the answers would have elicited. — B. R., L. & P. Co. v. Barrett, 179 Ala. 274, 60 South. 262.

We have examined the other assignments, and find that the trial court committed no reversible error in these rulings on the evidence, so presented for review. •

*603(7, 8) While it is not permissible to ask a witness if another witness was not mistaken in his statement of certain language used (Johnson v. State, 94 Ala. 40, 10 South. 667; Braham v. State, 143 Ala. 28, 38 South. 919; Newberry v. Atkinson, 184 Ala. 567, 64 South. 46), yet the case now presented by the exception to the several questions propounded to witness Moss is different. The witness had testified that he received and graded the cotton for defendant, and that cotton standing as this cotton had stood would lose, as indicated. The plaintiff was allowed to cross-examine the witness, and asked for his experience as to cotton losses in the time indicated. One having been engaged in the cotton business for twenty-five or thirty years may tell of general depreciation in weight as a matter of fact. We do not think there was any reversible error in permitting the cross-examination of the witness Mott and Atkinson.

(9) The right of amendment during the progress of the case, unless an injustice will thereby be done the opposite party, is declared in section 5367 of the Code of 1907. — Hanchey v. Brunson, 181 Ala. 453, 61 South. 258; Roden v. Capehart, 195 Ala. 29, 70 South. 756.

(10) The general Charge requested by defendant was properly refused. There was evidence to support more than one count of the complaint, and the charge requested was not as to any specific counts of the complaint, being, in effect, merely that, if the jury believed the evidence in the case, they must find for the defendant.

(11) Charge No. 13 was properly refused, under the issues in the case. The evidence shows that the cotton was graded by the defendant and the agents of plaintiff, and not by the plaintiff in person. The conduct of plaintiff is pleaded in estoppel of his right to maintain his suit for the undergrading of his cotton.

(12) There are 36 assignments of error. Some of them have been treated as waived, or were not elaborated and insisted upon in brief. — Wes. Ry. of Ala. v. Russell, Adm’r, 144 Ala. 142, 39 South. 311, 113 Am. St. Rep. 24; Ward v. Hood, 124 Ala. 570, 27 South. 245, 82 Am. St. Rep. 205; Scarbrough v. Borders, 115 Ala. 436, 22 South. 180; L. & N. R. R. Co. v. Morgan, Adm’r, 114 Ala. 449, 22 South. 20; Sylacauga Land Co. v. Hendrix, 103 Ala. 259, 15 South. 594; Williams v. Spragins, 102 Ala. 424, 15 South. 247; Rowland v. Plummer, 50 Ala. 197.

*604In Johnson v. State, 152 Ala. 93, 96, 44 South. 671, this court said: “No argument is presented nor authority cited in support of the assignment of error. Mere recital of what is shown by the record cannot be considered as an insistence on the assignment.”

In Republic I. & S. Co. v. Quinton, 194 Ala. 126, 69 South. 604, 607, the court said: “The only allusion to this charge in the brief of counsel for appellant is: ‘It is submitted that this charge was proper under the plea alleging contributory negligence, and should have been given.’ This does not ‘reach'the dignity of an insistence upon the grounds of error covering it’ (W. U. T. Co. v. Benson, 159 Ala. 254, 264, 273, 48 South. 712), and hence this assignment must be disregarded.”

We will therefore not consider the twenty-sixth, twenty-eighth, twenty-ninth, thirtieth, and thirty-second assignments of error. We may say, however, that we have examined the charges refused and given, and find that the jury were properly instructed by the court.

(13, 14) There was no error in the giving of plaintiff’s requested charge No. 1. The testimony of Lee, in explanation of the invoice on which payment was made, and of the number of bales he had of the respective grades, was in conflict with the terms of the invoice and with the testimony of the witness Dough-tie; and that issue of fact was correctly submitted to the jury on the question of “undergrading” the lot of cotton.

Finding no reversible error, the case is affirmed.

Affirmed.

Anderson, C. J., and Mayfield and Somerville, JJ., concur.