Stephenson v. Jebeles & Colias Confectionery Co., 65 So. 314

Stephenson v. Jebeles & Colias Confectionery Co.

65 So. 314 | Ala. Ct. App. | 1914

WALKER, P. J.

This case was here on a former ■appeal. — Jebeles & Colias Confectionery Co. v. Stephenson, 6 Ala. App. 103, 60 South. 437. The present appeal is from a judgment rendered by the court sitting without a jury. . It was in favor of the plaintiff, but awarded him only one cent damages.

The bill of exceptions recites that:

“At the close of the testimony the court announced that he was satisfied that the contract was made and that it had been breached, but that it did not satisfy him as to the extent of the decline in the market.”

The evidence bearing on the feature of the case as to which the court announced that it was not satisfied consisted of the oral testimony of two witnesses, that of the plaintiffs selling agent, and that of an officer of the defendant corporation. Their testimony was in sharp conflict. It is a familiar rule in this state that the conclusion of a court sitting without a jury, if based upon the oral testimony of witnesses, must on appeal be given the force and effect of a verdict of a jury, and, unless plainly wrong, cannot be disturbed, through a *433statute requires the appellate court to review the judgment and finding without any presumption in favor of the court below on the evidence. — Winter-Loeb Grovery Co. v. Mutual Warehouse Co., 4 Ala. App. 431, 58 South. 807; Glenn Refining Co. v. Webster, 5 Ala. App. 441, 59 South. 717; Millner v. State, 150 Ala. 95, 43 South. 194; Woodrow v. Hawving, 105 Ala. 240, 16 South. 720.

The conclusion announced by the court is criticised for an alleged inconsistency in rejecting the testimony of the defendant’s principal witness as to the making of the contract and at the same time giving it weight on the inquiry as to damages. This criticism assumes that, if the testimony had not been treated as true in part, the court was bound to have been satisfied that the testimony introduced by the plaintiff sufficiently proved that he had sustained substantial damage and the amount of it. The record does not enable us to affirm that such a conclusion must have followed from the testimony for the plaintiff if it had remained wholly uncontradicted. For the plaintiff to sustain the burden which was upon him of proving the amount of substantial damages to which he was entitled for the breach of the contract sued on it was incumbent upon him to prove the price at which, at the time of the breach, the amount and grade of flour mentioned in the contract could have been sold for delivery in May, June, July, and August, 1911, in Birmingham, Ala. — Jebeles & Colia's Confectionery Co. v. Stephenson, supra. We cannot affirm that the record proves that the plaintiff’s witness had the requisite information on this point, or that his testimony as to the price at which such a sale could have been made at the time and place in question was such that the court was bound to regard it as satisfactory and convincing. His testimony as it is set out in the record is not devoid of indications that he lacked *434full and accurate information on the subject. The weight of his testimony may have been further impaired by infirmities which were obvious to the trial court, with the witness testifying in its presence, but which are not disclosed by the written report of it found in the record, as fully to justify the court in declining to accept it as a basis for a finding of a fact in issue.

.Besides, even if the court was influenced by the conflict between this testimony and that introduced by the defendant, we cannot say that this was unwarranted because it is apparent from the conclusion announced by the court that it did not credit all of the latter testimony. There is no rule of law which requires a trior of fact to reject all of the testimony of a witness because a part of it is not believed to be true. It may well happen that one part of the testimony of a Avitness discloses the truth while another part of it does not, and that a trior of the facts is warranted in finding accordingly.

It is not apparent from the record that the court was plainly wrong in its conclusion that no amount of substantial damages was satisfactorily proved. In the absence of such proof only nominal damages properly could be awarded, though the alleged breach of the contract was established.

Affirmed.