Smith v. Kaufman

94 Ala. 364 | Ala. | 1891

McCLELLAN, J.

— The question which the trial court allowed to be addressed to the witness Sharpe, against defendant’s objection, may have been improper — it is not necessary to determine whether it was or not; but, if so, no injury resulted to the appellants in that Sharpe’s answer thereto, assuming the relevancy of the proposed testimony, was favorable to them. — Holland v. Bergan, 89 Ala. 622; Insurance Co. v. Moog, 78 Ala. 284.

2. It seems that when the sheriff was about to levy on the goods found in Kaufman’s possession, as the property of Bandman, he suggested to him that he make a claim-bond, and that after consulting with his counsel Kaufman declined to interpose a claim, preferring, as was stated at the time, to hold the sheriff responsible as for a trespass, and told the officer “to go ahead and levy,” or “to go ahead and close the doors.” Very clearly, he had the unfettered right to make this election; and we are unable to conceive how the expres- • sion of the election in the language we have quoted, could have conferred any right on the officer which he did not before possess, or in any way have prejudiced or estopped Kaufman from the assertion of any right which would otherwise have been his. Charge- 2 -given at the instance of the plaintiff states the law correctly in -this regard, and charges 1 and 2 requested by defendants, which were addressed to , these matters, were well refused, when reference is had to the evidence, on the grounds both that they would have misled the jury, and that they were affirmatively erroneous.

3. Charge 1 requested by plaintiff is substantially the same as an instruction held, to be bad at the last term in the case of Skipper et al. v. Reeves, 8 So Rep. 804 (93 Ala. 322); and for the reasons there set forth, we hold the giving of this charge to have been erroneous.

4. The insolvency of Bandman, from whom plaintiff purchased the goods, was not controverted. One of the main inquiries in the case was as to Kaufman’s knowledge either of his vendor’s insolvency, or of facts which amounted to constructive notice of it. As pertinent to this inquiry, it was shown that Kaufman, in making an inventory of the stock with a view to its purchase, used invoices of certain of the goods which liad been made out by the persons from whom Bandman had bought them, and that these bills showed that the goods had been bought on credit. It was not made to appear what dates the bills have, nor the time of credit in any instance, nor, indeed, that either of these facts was shown by them. For aught that does appear, these bills may have antedated the longest term of credit known in the particular line of business. Moreover, there is no evidence that the bills indicated that the amounts they represented had not been paid. All, in fact, which it can be affirmed that they tended to show, was that Bandman, at some time in the past, had bought some of the goods found in the stock on time. We are far from believing that this fact was sufficient to raise up in the mind of Kaufman suspicion of Bandman’s solvency, sufficient to put upon him the onus of inquiry on that subject, and to charge him with a knowledge of all the facts which such inquiry, diligently prosecuted, would have disclosed. On the contrary, we apprehend that the naked fact of Bandman’s having been able to purchase goods on a credit — and that is all we have here — would rather tend to prevent and allay suspicion of his solvency than otherwise. Charges 5 and 6 of the defendant’s series, which assert that the facts that Kaufman saw the bills of the goods in question as furnished to Bandman by the merchants from whom he purchased, and that said bills showed the purchases to have been made on credit, were sufficient to put the plaintiff on inquiry, &c., were in our opinion properly refused. — Stix & Co. v. Keith, 85 Ala. 465.

The questions arising out of the trial court’s refusing charges 3 and 4 requested by defendants need not arise on another trial; and we deem it unnecessary to decide them. For the error pointed out above, the judgment is reversed, and the cause remanded.