Saltmarsh v. Bower & Co.

Jun 15, 1859

Reporters:
Before:: Walker

A. J. WALKER, C. J.

The motion to suppress the cross-examination or re-examination of the nominal plaintiff, Bower, was predicated upon the two specified grounds, that there was no law authorizing it, and that this was not a case in which it could be allowed. The act of Eeb. 8th, 1856, allows a re-examination, “ either with or without interrogatories, by a party who had made a previous cross-examination that was imperfect or insufficient, but not made so by his willful neglect.” The prescribed prerequisite of such re-examination is, that’ the party, his agent, or attorney, shall make a satisfactory showing, upon oath, in writing, filed in open court, or with the clerk or register in vacation, of sufficient excuse for not having perfected the cross-examination before, and that a further cross-examination is necessary to secure justice upon the trial of the cause. The act further directs, that the deposition shall, in all respects, operate as a cross-examination. — Pamphlet Acts of ’55, ’56, p. 28.

A reference to this statute obviously demonstrates the unsoundness of the first objection, if the re-examination was taken under the statute above named. The witness was the nominal plaintiff, but the defendant made him his witness by taking his deposition ; and the beneficial plaintiff cross-examined imperfectly, from causes of which a satisfactory explanation was made by affidavits filed in pursuance to the statute. When the defendant thus examined the witness by taking his .deposition, and the plaintiff had cross-examined, the defendant stood in reference to the deposition, as if the witness had been disinterested, and unconnected with the record, (Stewart v. Hood, 10 Ala. 600; Lyde v. Taylor, 17 Ala. 270;) and the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍right to re-examine under the statute was the same as it would have been in the case of any other witness.

It is true that the commission does not state, in terms, that the re-examination was to operate or be by way of cross-examination. Bntthis omission could not prejudice the defendant; because, under our decisions, a party cross-examining is not confined to the subject-matter of the direct questions, but may examine generally as to all relevant matters.

*619The deposition was taken in pursuance to the statute, and conforms to its requisitions in every substantial particular ; and the objection, that there was no law authorizing the re-examination, cannot be sustained.

[2.] No reason to support the second ground of objection occurs to us, and we can perceive no error in overruling it. The appellant is confined to the objection made in the court below, and we therefore pass by, without remark, several other objections taken in argument before this court. — King v. Pope, 28 Ala. 601; Agee v. Williams, 30 Ala. 636.

[3.] After the motion to suppress the re-examination was overruled, the defendant objected, in general terms, to its introduction in evidence. A general objection, without defining any particular point, or assigning any reason, should always be overruled, if any part of the evidence is legal. It would be a most absurd practice, to permit a party to throw upon the court the burden of scrutinizing the entire proceedings, from the making of the affidavit to the return of the deposition into court, in quest of a fatal objection ; while the party stood by, forbearing to direct the attention of the court to any points of objection. — Wallis v. Rhea & Ross, 20 Ala. 453.

[4.] The witness Bower was asked by the second interrogatory, whether he was not forced by threats to make the transfer to the beneficial plaintiff of the account in controversy, and whether he did not make it unwillingly and in consequence of such threats. To- these questions the witness responded in the negative, and then proceeded to state the reason which induced him to make the transfer, and the facts upon which the reason was predicated. The latter part of the testimony was objected to, upon these three grounds: that it was not responsive to the interrogatory; that it was irrelevant to the issue; and that it was illegal. The first objection came top late, having been made for the first time on the trial. — McCreary v. Turk, 29 Ala. 244; Nelson v. Iverson, 24 Ala. 9. Certainly, that portion of the evidence objected to, which stated that the account sued upon was chiefly for advances made to the defendant, was both legal and rele-*620want; and the court was justified in overruling the objection of illegality and irrelevancy to the entire evidence, although every other part of it may have been. inadmissible.

[5.] Wé can conceive of no principle upon which the admissibility of the words, “ I did not consider that this was a loan to Wm. Bower & Co.,” can be vindicated. They are not susceptible of a construction which would make them expressive of anything else than the opinion, which the witness, at the time of the transaction, entertained of its legal effect. — Thomas v. DeGraffenreid, 27 Ala. 651; Ward v. Reynolds, 32 Ala. 384. The court erred in overruling the objection to this evidence. So, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍also, we think the court erred in refusing to exclude the last clause of Bower’s answer to the 7th interrogatory, which clause begins with the words, “I did not consider,” &c. The two last named portions of evidence, which the defendant moved to exclude, are not so blended with the other parts as to make them incapable of separation ; and if they were, we would be-reluctant to consent to the argument, that the admissibility of illegal evidence was secured by its intimate connection with that which was legal.

There was also error in the refusal to exclude the words, “ believing it due to said Smith under all the circumstances,” found in the answer of Haig to the first interrogatory. His belief or opinion, as to what was due to Smith, was not admissible evidence.

[6.] The part of the answer of George Haig to the first cross-interrogatory, to which the defendant objected, was as follows: “It was understood between Bower and myself, and was agreed on before the failure of W. Bower & Co., to dispose of the claim in this way, and, as we thought, to the satisfaction of all parties concerned.” So much of this testimony as shows the understanding and agreement between the witness and Bower was pertinent to the questions, whether the transfer to Smith was voluntarily executed, and had the voluntary assent of the two partners. The word “ understood” was manifestly used as the synonym of agreed, or contracted. — Griffin v. Isbell, *62117 Ala. 184. A part of the evidence being legal there was no error in overruling the objection, notwithstanding the part which stated what was “thought” was sible evidence.

[7.] The evidence as to the scope and character of the business of commission-merchants and cotton-factors was admissible. It seems to have been a question in the case, whether certain acceptances, in the name of Bower & Co., the nominal plaintiffs, were inadmissible as a set-offj upon the ground that they were made by one partner, without the knowledge or consent of the other, for a consideration outside the scope of the partnership business. To this question, the evidence as to the nature .and character of the business in which the partners were engaged, was pertinent.

The certificate of the clerk to the exemplification of the record, in the case of Saltmarsh v. Bower & Smith, shows that the supersedeas bond was omitted from the transcript. It is, however, unnecessary for us to inquire whether either of the objections to the introduction of the transcript ought to have been sustained, as the defect can be remedied.

[8.] Upon the principle settled in Rosenbaum v. The State, 33 Ala. 354, we decide, that there was no error in the refusal to permit a withdrawal, upon the trial, of a written admission previously made by the counsel.

[9.] The charge given by the court, without request, was to the following effect: If Saltmarsh had a judgment against Bower, and against Smith as his surety, and Bower & Co. had an account upon Saltmarsh, which, it was agreed between Bower & Co. and Saltmarsh, should be credited upon the judgment; and Bower & Co., in consideration of Smith’s liability as Bower’s surety upon the judgment, transferred the account to Smith, that he might have it credited upon the judgment, according to the agreement of Saltmarsh with Bower & Oo.; and if the account was not credited upon the judgment, and Smith was compelled to pay off the judgment, — ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍then Saltmarsh has no right to set off his debt upon Bower & Co. against the account, when sued upon in the name of Bower & Co., *622for the use of Smith. The fundamental proposition of this charge is, that Saltmarsh was deprived of the right of pleading a set-off against the account, because he agreed that it should be credited upon his judgment, and violated that agreement by not‘allowing it as a credit, and by coercing payment of the entire judgment out of Smith. The correctness of this proposition can be tested by the two inquiries — whether an agreement, that an account of a judgment debtor upon the judgment creditor should be credited upon the judgment, takes away the judgment creditor’s right of pleading a set-off” when sued upon by the judgment debtor; and whether a violation of the agreement by the judgment creditor, and a coercion of the payment of the entire judgment, can have that effect. 4

Certainly, one owing an account may, by a valid contract, deprive himself of the right to interpose a set-off” as a defense to a suit upon such account. — Davis v. Carlisle, 6 Ala. 707. But a contract that an account may be credited upon a judgment is not identical with a contract to forbear to claim a set-off against it. The two contracts are altogether distinct, in their terms, in the rights which they give, and in the obligations’ which they impose. One might well be willing to contract that an account on him should be credited upon his, judgment, and yet be very unwilling to abandon the right of set-off against the account. A consent, therefore, to a contract to allow an account as‘a credit upon a judgment, is not a consent to waive the right of set-off against the account. The plaintiffs in this case cannot claim for their cause of action an exemption from liability to set-off, upon the ground of a contract of the defendant, whereby he has waived his right to that defense.

Does the fact, that the defendant has violated his agreement to allow a credit upon his judgment for the amount of his account, deprive him, when sued upon it, of the right of set-off? TTpon the refusal of the judgment creditor to allow a credit upon the judgment, according to his contract, the defendants had a plain and adequate remedy, by a motion to the court which rendered the *623judgment, for an entry of satisfaction, ‘pro tanto, upon the judgment; and, if necessary, they might have protected themselves, pro tanto, by a supersedeas of the execution. — Bower v. Saltmarsh, 19 Ala. 274; Branch Bank at Mobile v. Coleman, 20 Ala. 140. Nor was this the only resort which might have been had upon the failure of the judgment creditor to allow the credit according to the contract, and his coercion of its payment. When the plaintiff in the judgment repudiated his contract, there.unquestionably sprang up on the other side a corresponding right to abandon the contract and sue upon the account. But while the contract was subsisting, there could be no right of action upon the account. The mutual agreement, that the account should be credited upon the judgment, invested Bower & t¡o. and Saltmarsh with reciprocal rights; the former to a credit upon the judgment for the amount of the account, and the latter tota ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍discharge of the account. While the contract was subsisting and of force, Saltmarsh had no right to enforce the collection of the entire judgment, and Bower & Co. no right to enforce the payment of the account, either for themselves, or for the use of one to whom they had assigned it after the contract. The right of action, therefore, upon the account, depends upon the abandonment of’ the contract that it should be credited upon the judgment, after its repudiation by the defendant. The bringing of the action upon the account involves the idea -of an abandonment of the agreement, and is the assertion of a right inconsistent with it, and hostile to it. The plaintiff cannot thus abandon the contract, and yet avail himself of the breach of it by the defendant for any purpose. If the agreement was repudiated by Saltmarsh, and the other parties thereupon elected to abandon the contract, and to regard it as rescinded, and accordingly commenced this action, the parties stood as though the agreement had never been made. The plaintiff cannot say, the.agreement has been so rescinded that I may maintain my action, yet it stands for the purpose of defeating the defendant’s set-off.

An argument may be made, which would address itself *624strongly to our sense of justice, to this effect: That Salt-marsh had wrongfully coerced from Smith the payment of a sum of money, equal to the amount of the account, in violation of his agreement, that the judgment should stand credited to the extent of the account. The conclusive reply to this argument is, that if Smith had a right to recover back the money so wrongfully collected from him, it cannot be done in this action, which is predicated upon the account, of Bower & Co.

[10.] Record evidence in the case discloses that Smith did make an effort, before the appropriate court, to obtain an allowance of a credit upon the judgment against Bower and himself, for the amount of the account.; and that after a trial had in the circuit court, a judgment was rendered against Smith. It is suggested in the argument, that when the charge speaks of the account not being allowed as a credit upon the judgment, it refers to its disallowance by the circuit court at the instance of Saltmarsh, and upon his resistance. As the point will probably arise in the court below upon another tidal, we will consider the charge as if its conclusion had been predicated upon a judicial refusal, at the instance of Saltmarsh, to allow the credit. The record discloses that the entire evidence offered by Smith, upon the trial of his application to have the credit allowed, was rejected ; and there being no proof before the court, a judgment against Smith was rendered. The correctness of the account was not necessarily involved in the decision against Smith. He could not recover, unless he proved the contract to allow the credit. The judgment, therefore, was not prima facie conclusive against the correctness of the account. — Chamberlain v. Gaillard, 26 Ala. 504; Wittick v. Traun, 25 Ala. 317. The judgment in that proceeding cannot be held, upon the record itself, as an estoppel to an action upon the account; but, on the contrary, the successful resistance of Smith’s application by Saltmarsh, considered in the light ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the record alone, and the subsequent coercion of the payment of the entire judgment, was a repudiation of the contract to allow the credit, and gave the plaintiffs a right to abandon that contract, and to resort to this action, but could *625give them no right to take advantage of the contract in this case. On the contrary, the question whether there was a valid agreement that the account should be credited upon the judgment, was necessarily involved in the decision against Smith, on his proceeding to obtain the credit. The making of the agreement was a matter which necessarily pertained tp the trial, and the decision against Smith was conclusive upon him that no such agreement had e‘ver been made. Indeed, the trial and judgment in the circuit court, in the proceeding instituted by Smith to obtain a supersedeas, is conclusive, in this ease, upon the question of an agreement to allow the credit. Erom this conclusion, as to the effect of the record, it follows that the charge is incorrect, if it be understood to refer to and include in its statements the record in the supersedeas proceeding of Smith v. Saltmarsh.

The reasoning which we have employed in reference to the charge given by the court of its own motion, is equally fatal to the charge which was given upon the plaintiffs’- request.

[11.] Smith’s petition for the supersedeas was admissible in evidence, as a part of the record; but it was not evidence of the facts stated in it; and the court should instruct the jury, that it cannot be regarded by them in that light.

The’judgment of the court below is reversed, and the cause remanded.

StoNE, J., not sitting.