Alabama Lumber Co. v. Cross
| Decision Date | 02 July 1907 |
| Citation | 44 So. 563,152 Ala. 562 |
| Parties | ALABAMA LUMBER CO. v. CROSS. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.
Action by Z. Cross against the Alabama Lumber Company; the complaint being in the common counts. Judgment for plaintiff, defendant appeals. Affirmed.
M. L Ward, for appellant.
Pinkney Scott, for appellee.
Assumpsit to recover on an account for lumber sold and delivered by plaintiff to the defendant. It does not appear from the evidence of the witness Benton that the items reported to him by the teamsters were original entries. Neither did it appear, at the time the book was offered as evidence, that the witness Benton knew that the entries were correct at the time they were made. In this state of the evidence the court erred in admitting the book in evidence. Bolling v. Fannin, 97 Ala. 621, 12 So. 59; Lane v. May & Thomas Hardware Co., 121 Ala. 296, 25 So. 809; Baird Lumber Co. v. Devlin, 124 Ala. 245, 27 So 425; Callaway & Truitt v. Gay, 143 Ala. 524, 39 So 277, and authorities there cited.
But the point is made that this error should not work a reversal of the cause, as it affirmatively appears by the record that after the book was admitted the witness Benton, without objection, testified as follows: "I mailed defendant a statement showing the amount of lumber, and an additional statement thereof shipped in each car, and I kept a copy of the same;" and it affirmatively appears that the witness then produced a copy of the statements of about 20 cars of lumber shipped to the defendant, and the bill of exceptions recites that defendant (in the same connection) produced the statements of cars of lumber which were introduced as evidence and were correct "in comparison" with plaintiff's books as above shown. At the foot of each of the statements is a summing of the total of each kind of lumber and of the total amount due by the statement. It is thus made to appear that the statements were received by the defendant. They were produced by him on the trial, and it is shown that they showed what was disclosed by the books--nothing more. The statements were competent evidence. Hirschfelder v. Levy & Company, 69 Ala. 351; Rice v. Schloss & Kahn, 90 Ala. 416, 7 So. 802. In this state of the evidence, we think it is affirmatively shown that the defendant suffered no injury by the books being allowed in evidence.
While the defendant was being examined as a witness, he was asked by his counsel this question: "What was the custom in this district as to where lumber was to be measured by wholesale dealers?" The court sustained an objection to the question. This ruling may be justified on two or more propositions; but we will rest its justification on the ground that it does not appear that the district embraced the place where the goods were sold and delivered, and, if not, the question was subject to the specific objections made.
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