91 Ala. 271 | Ala. | 1890
This is a suit against the railroad company as a common carrier. The complaint is, that the railroad company received from a connecting railroad line a lot of merchandise (tobacco) to be delivered to plaintiff at Brewton, Alabama, the infice of consignment, and that there was a failure 1o deliver the merchandise when called for. There was no direct, positive proof that the merchandise, which was shipped from Lynchburg, Virginia, ever reached the defendant railroad; and we suppose the defense was rested mainly, if not entirety, on that 'ground. Fagan Avas the agent of the railroad com-2>any, in charge of the depot at BreAvton. Being examined as a witness for j>laintifl‘, he testified “that, on the 14th day of July, 1888, he, as agent of the defendant, received
What an agent says at the time of', and in connection with an act of agency, is admissible evidence against the principal. When, however, the act is past, and the statement is merely of such past transactions, such testimony is inadmissible.—M. & C. R. R. Co. v. Maples, 63 Ala. 601; Ware v. Morgan, 67 Ala. 461; Ala. Gr. So. R. R. Co. v. Hawk, 72 Ala. 112; 9 Am. & Eng. Encyc. of Law, 348-9. The evidence objected to, should not. have been received.
It is urged that, inasmuch as Fagan, the agent, was after-wards introduced, and gave evidence which would have authorized the jury to find that the goods were destroyed in the burning of the car, this rendered the former evidence harmless. We can not agree to this. The ascertainment of the facts from the oral testimony was purely a question for the jury, and we can not speculate as to what their finding would be. The question, what is legal testimony, is for the court to determine. What facts that testimony establishes, the jury alone can decide.—Hames v. Brownlee, 71 Ala. 132.
The plaintiff, in giving his testimony, should have produced his invoice of purchases, or accounted for its absence. As we understand the bill of exceptions, the quantity and value of the tobacco shipped to him were shown only by the invoice, for he had not seen the merchandise. Facts which are learned only from the inspection of a paper writing, must, as a rule,
We have declared that Fagan’s admission, that the tobacco had been destroyed with the burned car, should have been ruled out. That testimony rejected, the present record would not show enough to authorize a charge on the effect of the.evidence.
Reversed and remanded.