Smiley v. Hooper

41 So. 660 | Ala. | 1906

SIMPSON, J.

This Avas an action of trover for the conversion of 200 cords of Avood, brought by the appellant (as plaintiff) against the appellees (defendants), being the plaintiff in execution and the sheriff. The defendant pleaded justification; the supposed act of conversion being the levy on the Avood under an execution against one Entrican. There are 29 exceptions to questions to the witness Stewart and tb the overruling of motions to exclude the answers to the same. These were all asked by the defendant on cross-examination. The witness professed to have bought the wood for Smiley, the plaintiff, and the defendant was evidently trying to test the witness as to his accuracy, his recollection, or his truthfulness, and controverting the fact that the wood was bought for Smiley and was his property. The law allows great latitude in cross-examination for these purposes, and it is a matter which rests largely in the discretion of the trial court as to the extent to which the cross-examination may be allowed. We cannot see that there was any abuse of the discretion by the trial judge in regard to these questions and answers. — A. G. Rhodes Furniture Co. v. Weeden & Dent, 108 Ala. 252, 257, 258, 19 South. 318; Tobias v. Treist, 103 Ala. 664, 15 South. 914; Noblin v. State, 100 Ala. 13, 14 South. 767. The same principles apply to assignments of error numbered from 30 to 38, inclusive, relating to the cross-examination of the witness .Entrican; also to assignments from 39 to 44, inclusive, relating to the cross-examination of the witness Wildman and the plaintiff.

Referring to the forty-fifth assignment, the plaintiff had testified in his own behalf that he was furnishing the -wood which he bought to the Eagle Iron Company, that they paid him always just 10 cents per cord more than he paid for the wood, and when they notified him to put down the price of the wood he did so, etc. The plaintiff then offered to prove by him that when he settled with said company, and was charged by them with all the money received by them, and credited with wood, “no deduction or credit was made or allowed to him on account of the wood which was not delivered.” The defendant objected to this testimony, and the court sustained the objection and excluded the testimony. In this the court erred. The evident tendency of questions allowed to the defendant on cross-examination as to the transactions between the plaintiff and the Eagle Iron Company was to raise the question whether or not plaintiff was simply acting as the agent of that company in purchasing the timber, so that said company was the owner of the timber, and the matter here proposed to be proved by the plaintiff was relevant to show what the real transaction was between them, as going to show who was the owner of the wood, and should have been allowed, in view of the evidence already admitted.

The objections of the plaintiff to the several questions to the witness Coleman, and motions to exclude the answers, should have been sustained. It was not competent to prove who Stewart was representing by what McClane, the superintendent of the Eagle Iron Co., said. This was clearly hearsay testimony. The same is true with regard to the statements by the witness McCord as to what McClane said. The contracts made by Stewart with other parties, and as to the marks placed by him on the wood bought for other parties, were properly admitted as having some relevancy as to the question whose wood it Avas that was levied on. The fact that Entrican had hauled some wood to the railroad was relevant, but his statements made to the witness Malone should have been excluded. There Avas error, also, in allowing the witness Bohanan, over the objection of plaintiff, to relate Avhat McClane said about' whom Stewart represented.

Charge 1, given at the request of the defendant, exacts too high a degree of proof. It is sufficient if the evidence reasonably satisfies the jury. — Moore v. Heineke, 119 Ala. 629, 632, 640, 24 South. 374. The court erred in giving charge 2, on request of the defendant. According to the contract therein referred to, the wood purchased by Entrican for the Eagle Iron Company would not become the property of that company until delivered “f. o. b. cars” at Attalla, Ala., for them, so that, though Entrican may have cut it and put it on the railroad under that contract, yet, if he sold it to Smiley before shipping it to the said company, it was Smiley’s wood.

dharges 3 and 4, requested by defendant, were properly given. The burden being on the plaintiff to show that the wood sued for belonged to him, proof that it was bought for another party would defeat his recovery.

Charge 5, given on the request of the defendant, should have been refused. It cannot be said that, because a party pxirchasing property states that he is buying for another party, the law presumes that the contract is the contract of that party. Agency cannot be proven by the mere statement-of the agent.

Charge 6 was properly given on request of the defendant; the burden being on the plaintiff to prove that he was the owner of the property for the conversion of which the suit was brought.

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

Weakley, C. J., and Tyson and Anderson, JJ., concur.