Steinhardt v. Bell
80 Ala. 208
Ala.
1885
Check Treatment
STONE, C. J.

-The testimony all agrees in proof of the following state of facts : That Mrs. Mary Bell let her plantation to Stanton Olds, by rent contract, for the year 1880, at the agreed price of three hundred dollars; that Olds sub-let apart of the land to Moore, and that both Olds and Moore cultivated and produced a cotton crop on the lands during that year; that *211before November of the year Olds paid to Mrs. Bell about two hundred dollars of the rent money, leaving about one hundred dollars unpaid; that in the month of November, Olds delivered at a gin, cotton enough, of the crop which had been so grown by Moore on Mrs. Bell’s land, to make two bales, and directed that it be turned over to Mrs. Bell in payment of her rent claim; that the cotton was ginned and packed, and set apart as Mrs. Bell’s property, and that subsequently the Steinhardts, through their agent, got possession of the two bales of cotton, and applied the proceeds in payment of a debt due from Moore, the sub-tenant, to them. There is no proof tending to show that Mrs. Bell had authorized the Steinhardts to take the cotton ahd apply the proceeds to Moore’s debt. On this state of facts, if there were nothing more, it is very clear that Mrs. Bell made a clear case for recovery, if the uncontradicted testimony was believed. She had a lien on the entire crop grown on the laud for the rent, and when the two bales were placed, by the tenant, at the gin-house to be subject to her control, this perfected her title, and enabled her to maintain trover against any one who afterwards converted it. Robinson v. Lehman, Durr & Co., 72 Ala. 401; Lake v. Gaines, 75 Ala. 143.

The testimony shows that after the two bales were set apart for Mrs. Bell, at the gin-house, the Steinhardts sought to induce her to surrender them to them as the property of Moore, on which they claimed a lien. This she refused to agree to; but proposed they should take the cotton as her cotton, and allow her a personal credit for it. This they refused to do. After the Steinhardts had taken possession of the cotton, they, through their agent, requested Mrs. Bell to permit them, in her name, to attach other cotton grown on the place that year, and thus collect the remaining hundred dollars of rent. This she refused to do. Notwithstanding this refusal, the Steinhardts did sue out attachment, in her name, against Olds, and had other cotton levied on. A trial of the suit was had, and Mrs. Bell; being summoned as a witness, gave testimony on the trial. Up to this point there is no discrepancy in the testimony.

There is in this case but one main, controverted question of fact between the parties litigant. Did Mrs. Bell acquiesce in and ratify the conversion of the two bales of cotton by the Steinhardts, and agree to look to some other source, or sources, for the payment of her rent? If she did, then this is an answer to the prima facie case, which we have shown the testimony, if believed, makes in her favor. On this issue of ratification, vel non, the burden of proof was on the Steinhardts. And to make the ratification valid and binding, “the person ratifying must have had knowledge of all essential facts.” Wharton on Agency, § 65. Ratification must be “deliberately *212made, with a full knowledge of the material facts, to be binding on the principal.” — 1 Brick. Dig. 59, § 98; Chapman v. Lee, 47 Ala. 143; Moore v. Robinson, 62 Ala. 537; Herring v. Skaggs, 73 Ala. 446. It follows that all testimony tending to prove or disprove Mrs. Bell’s knowledge of the facts attending the issue and pomose' of the attachment, and tending to prove or disprove her ratification of the use of her name by the Steinhardts in suing out the attachment, was competent evidence.

Olds’declaration when he delivered the'cotton at the gin, that it was for Mrs. Bell in payment of rent, was res gestos to the act of delivery, and was admissible.

What took place in the trial of the case of Steinhardts v. Mary Bell, in the City Court, was certainly not evidence tending to prove any part of Mrs. Bell’s claim in this case; and being immaterial, should not have been admitted against the objection of defendants. This applies alike to proof of the oral testimony, and to the account produced in evidence. Neither was it competent, as a means of impeaching the witness Steinhardt, because the testimony given on that trial did not relate to any transaction material to any issue in this suit. Previous contradictory statements, sworn or unsworn, can not be given in evidence asa means of discrediting a witness unless they relate to some matter material to the issue on trial. 2 Brick. Dig. 549, §§ 125, 126; 1 Greenl. Ev. § 462; 1 Whar. Ev. § 551. In admitting this evidence the Circuit Court erred.

Questions raised on the admission of evidence pending the argument will not probably be presented on another trial. What Craig told the witness, was not competent. As a rule, testimony should not be received merely to rebut an inference attempted to be drawn in argument, unless it be of some pertinent fact, overlooked or omitted in submitting the testimony. Discretionary powers may, and frequently should be exercised 'in promotion of justice.

The charge given by the court, at the request of plaintiff, is free from error. The first charge asked by defendant is obscure, and was rightly refused, because average jurors would not be likely to understand it. It is also abstract, because the record contains no evidence that the Steinhardts took any action, based on anything Mrs. Bell may have stated.

The record fails to show, as fact, that any appeal was taken from Conoley’s judgment. The word “appeal,” written on the docket in Conoley’s hand-writing, is not enough to prove an appeal was taken. The disposition made of the justice’s judgment is not shown in the transcript before ns. It ought to be shown.

Reversed and remanded.