Alabama City, G. & A. Ry. Co. v. Kyle

Citation87 So. 191,204 Ala. 597
Decision Date28 October 1920
Docket Number7 Div. 37
CourtSupreme Court of Alabama
PartiesALABAMA CITY, G. & A. RY. CO. v. KYLE et al.

Appeal from Circuit Court, Etowah County; O.A. Steele, Judge.

Action by T.S. Kyle and others, as trustees, against the Alabama City, Gadsden & Attalla Railway Company. From judgment for plaintiffs, defendant appeals. Reversed and remanded.

Goodhue & Brindley and Dortch & Allen, all of Gadsden, for appellant.

Culli &amp Martin, W.J. Boykin, Alto V. Lee, and O.R. Hood, all of Gadsden, for appellees.

SAYRE J.

The report of a former appeal in this cause may be seen in 202 Ala. 552, 81 So. 54. On its return to the trial court count 9, involving an alleged breach of a contract, by which appellant undertook to execute its several notes in consideration of the removal of the Southern Iron & Steel Company's plant from Ensley to Alabama City, and involving a sum much larger than the judgment now under consideration, was eliminated and the trial had upon count 1 of the complaint declaring upon one only of the notes mentioned in count 9. In this note appellant agreed "to pay cost of collecting this note, including reasonable attorney's fee for all services rendered in any way in any suit against any maker or indorser, or in collecting or attempting to collect, or in securing or attempting to secure, this debt, if this note is not paid at maturity. Appellees' evidence, tending, as appellant contends, to show the value of services rendered by appellees' attorney on the former trial and on appeal in this court, was admitted over appellant's objection. It must be conceded we think, that, notwithstanding the general nature of the obligation assumed in respect of attorney's fees appellant should not, in the action shown by count 1, be adjudged liable for the value of services which may have been rendered necessary by issues raised on the trial of count 9; and doubtless the trial court would have so ruled had its judgment on that precise question been invoked; but there was no such invocation, and error cannot be declared. Some questions propounded by appellees were aptly framed to elicit the competent and relevant opinions of the witnesses as to the value of services rendered in and about the collection of a note like unto that described in count 1, and if the witnesses failed to discriminate between services rendered in the prosecution of the different demands, that fact should have been developed by cross-examination and availed of by motion to exclude or by special instructions to the jury. One of the witnesses, who appeared as an attorney for appellant on both trials, seems to have made his statement of the facts without being interrogated, and the record shows that appellant "objected to the statement of the witness." He spoke of the value of the services rendered by appellees' attorneys on the former trial without an effort to discriminate between such services as were necessary and proper in the enforcement of the demand set forth in count 1 and such as may have been occasioned by the effort to enforce the larger and different demand described in count 9 However, the objection also failed to discriminate. Indeed, it seems to have been directed mainly to the proposition that plaintiff should not be allowed to recover the value of services rendered on the former appeal in which defendant had procured a reversal. This broad proposition cannot be sustained in its entirety. So far as concerns the claim now in litigation, legal services rendered in maintaining it in this court on the former appeal were well within the stipulation of the note-contract, and in our opinion plaintiff's right to the value of such services was not abated by the fact that the judgment was affected by error which went, not to the right itself, but to the procedure by which plaintiff sought its enforcement. Plaintiff's claim, to the extent of the note and apart from the litigable issue as to the substantial performance of the contract upon which the note was conditioned, was meritorious, was declared upon in a special count, a suit in itself, unembarrassed by the allegations of count 9, and as to it and the point here under consideration defendant should have avoided occasion for the accrual of fees in the trial and appellate courts by confessing liability.

Over the consistently repeated objections and exceptions of the defendant appellees were allowed to introduce evidence tending to show that E.T. Schuler, president of the defendant corporation, had been appointed and had served on a committee to raise the subscription bonus of $150,000 to induce the Southern Iron & Steel Company to remove its plant from Ensley to Alabama City--the note in suit constituting a part of the subscription- [87 So. 193] --that he importuned a number of people in Gadsden to make subscriptions to the fund; that he represented to them that it would be greatly to their interest to subscribe; that it was up to them to make large subscriptions; that a committee of the Chamber of Commerce of the city of Gadsden would report whether the Southern Iron & Steel Company had complied with their contract, and more of the same general character. The cause was tried on several pleas, in short by consent, and an agreement that any other legal defense, not requiring a plea verified by oath, might be given in evidence, and the suggestion in brief is that the evidence in question would have been relevant and material to several possible defenses. The admission of this evidence cannot be justified as relevant to any issue made by the pleadings, nor does it occur to us that an issue might have been raised to which this evidence would have been relevant, save, perhaps, on a plea of non est factum, by which we mean a plea going to the authority of Schuler to sign the corporate name or the fact that he did so sign; but it was further agreed that there should be no such issue in the case. So, then, the court erred in these rulings; nor do we think it can be affirmed with any certainty that no prejudice resulted. On the contrary, the effect was to present the defendant to the jury as seeking to avoid an obligation just such as it had been busy in inducing its fellow citizens of Gadsden to assume. Its strong tendency was to prejudice defendant in the eyes of the jury and in the absence of countervailing proof we can only assume it acted accordingly. Maxwell v. State, 89 Ala. 164, 7 So. 824; Galbreath v. Cole, 61 Ala. 142.

But after this evidence had rested in the mind of the jury for what must have been a long time and, to quote the bill of exceptions--

"after the testimony had closed, counsel for plaintiff made the following statement to the court: 'We withdraw all the testimony showing that Mr. Schuler was a member of the Commerical Club of Gadsden, or of the Chamber of Commerce, also the evidence that was offered showing that he went around with the committee soliciting subscriptions. Also we withdraw the evidence to the effect that a committee was appointed by the Chamber of Commerce for the purpose of ascertaining if the steel company had complied with its contract in removing the wire and rod mill to Alabama City. We withdraw these several batches of evidence to clear the case of those questions as to some of which our friends have made so much noise.' "

Whereupon counsel for defendant moved that the case be withdrawn from the jury "after this testimony has been in and had its effect upon the jury," which motion the court overruled, saying:

"Gentlemen of the jury, you remember the testimony with reference to the committee appointed by the Chamber of Commerce, and the
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