Southwestern Ala. Ry. Co. v. Maddox & Son

41 So. 9 | Ala. | 1906

DOWDELL, J.

The demurrer to the third count of the complaint proceeds upon the theory that said count declares upon a contract, whereas, in fact, it does not. Said count is more in the nature of an action for money had and received. The foundation of it is claim for overcharges in freight which the plaintiff ivas required to pay in order to get his goods. There was no error in overruling the demurrer to this count.

Many of the exceptions reserved by The defendant to the rulings of the court on the introduction of evidence were based on objections of the defendant to answers of the witness. No objections were made to the questions calling for the answers that were objected to. Indeed, the record does not show what the questions were, and for aught that appears the answers which were objected to were responsive to the questions, and, nothing appearing to the contrary, it will be presumed on appeal that they were, and in such case, the question'not having been objected to, the objection to the answer comes too late, when such answer is responsive to the question.

The introduction of the bill of lading rendered competent the evidence of the witness Smith relative to his connection with the transaction in his effort to collect the overcharges in freight, which had been paid by the plaintiffs, and also made competent in evidence the correspondence between said Smith and the agents of the railroad company in reference to said overcharges. The defendant, company, as a connecting line at the point of destination and place of the delivery of the goods, was the agent of the initial company issuing the bill of lading. The evidence without dispute showed that the defendant held the plaintiff’s goods and refused to deliver them without the payment of the money. This being true, the payment cannot be said to have been voluntary. —22 Am. & Eng. Ency. Law (2d Ed.) p. 617.

We find no reversible error in the record, and the judgment appealed from will be affirmed.

Affirmed.

Weakley, (\ J., anil Haralson and Denson, JL, concur.