Benson & Co. v. Foreman

• Decision Date: 10 April 1941
• Docket Number: 4 Div. 186.
• Court: Alabama Supreme Court
• Parties: BENSON & CO., INC., v. FOREMAN.

1 So.2d 898

241 Ala. 193

BENSON & CO., INC., v. FOREMAN.

4 Div. 186.

Supreme Court of Alabama

April 10, 1941

Rehearing Denied May 5, 1941.

A.R. Powell, of Andalusia, for appellant.

Ralph A. Clark, of Andalusia, for appellee.

FOSTER Justice.

The chief controversy on the trial of this suit and on this appeal is whether section 7721, Code, serves to prohibit the defendant from giving certain testimony.

The action was on an account extending over a long period by the employer against his employee. Plaintiff at the time of bringing its action, which was on an open account and also a stated account filed with the complaint a verified itemized statement of the account, and endorsed on the summons and complaint that fact. Defendant did not file an affidavit in manner and form required by section 7666, Code, denying the correctness of the account. The only plea on which the trial was had was the general issue with leave to give in evidence any matter which could be specially pleaded.

On the trial plaintiff introduced the verified account and also made proof that defendant had approved and agreed to the account. Such proof made out a prima facie case. Section 7666, Code; Baker v. Haynes, Henson & Co., 146 Ala. 520, 40 So. 968; Rivers v. Paterson & Edey Lumber Co., 212 Ala. 96, 101 So. 652.

The defendant then had imposed on him the duty to overcome that prima facie case. This he undertook to do by his own testimony which it is claimed violates section 7721, Code. He had been employed by the Benson Hardware Company from 1927 until it went into bankruptcy in October 1932. This plaintiff, another corporation, began business in 1933, and succeeded the other. There was no error in allowing parol proof that the first company went into bankruptcy in October 1932. That was only a collateral fact, not subject to the primary evidence rule. 9 Alabama Digest 158, Evidence, k171 22 Corpus Juris 978, section 1224.

The sole controversy which developed on the trial was as to the proper amount that should be credited monthly to defendant by plaintiff on his account which ran throughout the years of his employment. The verified statement of the account shows that the salary was not paid except by crediting his account monthly, and that when he began to work for Benson Hardware Company his salary credit was $150 monthly reduced in 1932 to $120 that the salary credit for his salary by this plaintiff after it began business was $90, except in 1937 and part of 1938, when it was $100 monthly. Defendant claims it should have been $120 all of the time from 1933 to and including 1937, and the three months in 1938 when he was so employed. Defendant's claim is supported by his own testimony only, to which objection was made as we have observed. In that testimony he relates the details of an agreement to support his contention with O.L. Benson, the president of both Benson Hardware Company and of Benson & Co., who also was the general manager of both of those companies, and was dead at the time of trial and had not given any testimony in the case.

As we have observed, the question relates to the applicability of section 7721, Code. That the witness shall be held incompetent, he must of course have a pecuniary interest in the result of the suit. The witness was the defendant against whom a pecuniary judgment...