Woodstock Iron Co. v. Reed & Partlow

84 Ala. 493 | Ala. | 1887

CLOPTON, J.-

— The contract between the plaintiffs and defendant rested in parol, and it was competent to prove the terms of such agreement by oral evidence. No rule of evidence was thereby offended. It was not the statement of a conclusion, or of the legal effect of the contract, but of facts, the terms agreed on by the parties. If the opposite party desired to test the accuracy or credibility of the testimony, or to sIioav tlie true nature of the contract, what was said and dono by each party could have been drawn out on cross examination. The credibility and sufficiency of. the evidence were for the jury. — Anderson v. Snow, 9 Ala. 247; Saltmarsh v. Bowen. 34 Ala. 613. A subpoena duces tecum was issued and served on the secretary of the defendant corporation, requiring him to produce “all books and papers belonging to defendant containing any entries, or having any reference to the coaling contract between the plaintiffs and the defendant.” "When the case was first called for trial, the defendant’s counsel stated that the book, called the “coal delivery book,” had been overlooked, and asked that the case stand over until the next day, when they gave assurances that it would bo brought into court. The case was postponed and again called for trial the next morning, when plaintiffs’ counsel called for the book, and in response thereto defendant’s counsel produced the book offered in ovidence, and delivered it to plaintiff’s counsel in open court. The defendant certainly claimed an interest in and under the books, in which Avere kept its business transactions. The production of the book under such circumstances, as a book belonging to defendant, Avas an admission that it belonged to, and Avas kept by defendant. Having been produced in open court when called for, it Avas admissible in evidence without further proof of identification.— Ward v. Reynolds, 32 Ala. 384; 1 Greenl Ev. § 571; Betts v. Badger, 12 Johns. 223.

The main point of contention Avas, Avhether the plaintiffs or defendant should lose the amount paid by the latter for cutting the Avood, Avhich was consumed by the fire that occurred in AAigust 1883. If. by the contract, the plaintiffs Avere not to pay the defendant for cutting Avood, Avhich wras not manufactured into coal, or if nothing was said or agreed about paying for cutting Avood not used in the burning of coal — the plaintiffs are not liable for the amount paid by defendant for cutting the wood which was destroyed by the fire; otherwise, if the duty to contract for and look after the cutting rested on the plaintiffs. — Woodstock Iron Co. v. Reed & Partlow, 81 Ala. 305. The legal proposition, asserted in the instructions, Avas founded on these hypotheses, Avhich the jury found by their verdict to be true. There is no error in the charges given.

Affirmed,