Alfred Shrimpton & Sons v. Brice

• Decision Date: 12 April 1894
• Citation: 15 So. 452,102 Ala. 655
• Court: Alabama Supreme Court
• Parties: ALFRED SHRIMPTON & SONS, LIMITED, v. BRICE ET AL.

15 So. 452

102 Ala. 655

ALFRED SHRIMPTON & SONS, LIMITED, v. BRICE ET AL.

Supreme Court of Alabama

April 12, 1894

Appeal from circuit court, Blount county; John B. Tally, Judge.

Assumpsit by Alfred Shrimpton & Sons, Limited, against Brice & Donehoo to recover an amount alleged to be due plaintiff for pins sold by plaintiff to defendants upon their order. From a judgment for defendants, plaintiff appeals. Reversed.

Issue was joined on the plea of the general issue. On the trial of the case, as is shown by the bill of exceptions, the plaintiff introduced in evidence an itemized statement of the account, which was verified by the affidavit of the secretary of the plaintiff. Upon the introduction of James A. Brice one of the defendants, as a witness, he was shown the statement of the account, which was introduced in evidence and was asked: "Is that account correct?" The plaintiff objected to this question, on the grounds that no affidavit had been filed in the case by the defendants denying the correctness of the account, and that it called for a conclusion of the witness. The court overruled these objections, and plaintiff duly excepted. The witness answered that said account was not correct, and that the defendants had never made such an account with the plaintiff. This witness further testified, on cross-examination, that some time in the spring of 1891, while the defendants were engaged in carrying on a general mercantile business at Murphree's Valley, they received through the mail addressed to them, a letter from the plaintiff, soliciting their purchase of the pins manufactured by the plaintiff, and that inclosed in this letter was a sample of said pins, and a blank order on the plaintiff for any quantity of pins desired; that at that time defendants had clerking for them one Perry Bynum; that he (Brice) instructed the said Bynum to make an order on the plaintiffs for some pins, and that, in obedience to said instruction, the said Bynum filled out one of the blank orders, and inclosed such order in an envelope directed to the plaintiff. This witness further testified that he had no recollection of receiving from the plaintiff a letter acknowledging the receipt of their order for the pins and in this respect he was corroborated by the testimony of Donehoo and his clerk Bynum. It was further shown by the testimony of this witness that on one occasion, when one Amberson was hauling some freight for the defendants from Attalla, a shipping point on the Alabama Great Southern Railroad, used by the defendants, to their place of business at Murphree's, Ala., Amberson hauled the pins, which had been shipped by the plaintiff to the defendants, and the defendants refused to receive the same. On examination in rebuttal of this witness, he was asked by his attorney to "state what you said to Mr. Bynum in reference to making an order on plaintiff for some pins." The plaintiff objected to this question, on the grounds that it called for immaterial and irrelevant testimony, and "that secret instructions to the agent from the principal are inadmissible as against third persons dealing with the principal in good faith." The court overruled this objection, and the plaintiff duly excepted. In answer to this question, the witness answered: "I told Mr. Bynum to order from the plaintiff five great gross of pins;" and he further stated, positively, that he never instructed Bynum to make an order on plaintiff "for five great gross papers of pins." Against the objection and exception of the plaintiff, this witness was allowed to testify further, in rebuttal, that, when Amberson was hauling freight for defendants from Attalla, he (Brice) wrote a note to the depot agent at Attalla, as follows: "Please let J. D. Amberson have all our freight, except a lot of pins from Alfred Shrimpton & Sons, of New York. [Signed] Brice &amp Donehoo." There was no evidence showing that this notice was ever handed to the agent at Attalla, or that he had any notice or knowledge of it. Upon the further examination of Brice, he was asked by the defendants the following question: "How many pins do the firm of Brice & Donehoo usually sell in a year?" The plaintiff objected to this question, on the ground that it called for immaterial and irrelevant evidence, but the court overruled the objection, and to this action of the court the plaintiff duly excepted. The defendants were allowed to give evidence tending to show their financial rating, the amount of their annual business, and whether or not the amount of pins alleged to have been purchased by them from the plaintiff was a reasonable purchase of pins for their trade and business. To all of this evidence the plaintiff objected, and moved the court to exclude it from the jury, on the ground that it was irrelevant and immaterial to the issues raised by the pleadings in the cause. The court overruled this motion and objection by the plaintiff, and permitted the testimony to go to the jury, and to this ruling the plaintiff duly excepted. Upon the examination of Perry Bynum as a witness, his testimony tended to show that, while clerking for the firm of Brice & Donehoo in their store at Murphree's Valley, Ala., the Mr. Brice of said firm "handed to him an envelope, addressed to plaintiff, and a blank order, or printed blank for order, on plaintiff for pins, *** and told him to order from the plaintiff five great gross of pins;" that he (Bynum) signed the name of Brice & Donehoo to the order, and mailed the same to the plaintiff. Upon this witness being shown the order for the pins which was received by the plaintiff, he testified that it did not look like the order which he had signed, but he would not be positive that it was not the same one made by him. By the deposition of A. A. Wright, which was read in evidence in behalf of plaintiff, it was shown that said A. A. Wright was the president of the plaintiff, and had the management of the affairs of the plaintiff's business in the United States; that, in the early part of 1891, he caused to be mailed to the defendants a letter soliciting an order from them for the pins manufactured by the plaintiff, and that in said letter there was inclosed a blank form for an order, and a sample copy of the pins; that on April 11, 1891, the plaintiff received a letter from Brice & Donehoo, written on the blank form of order sent them by the plaintiff, as follows: "Alfred Shrimpton & Sons, Limited. Pin Department. 273 Church Street, New York City. Please put up for us 5 great gross papers of pins, 360 pins in a paper, with our advertisement printed at the head of each paper, and between the rows, in following sizes, 'Assorted'." Then follow the directions for the advertisement on the papers of pins. This order was signed "Brice & Donehoo." The deposition of the said A. A. Wright further tended to show that, after obtaining from its mercantile agency a report of the defendants which was satisfactory, he wrote a letter to Brice & Donehoo on April 21, 1891, acknowledging the receipt of their order, and stating that he had sent it to the factory to be filled. This letter was introduced in evidence. It was further shown by the testimony of this witness that plaintiff shipped the pins to Brice & Donehoo, but that no part of the indebtedness from the defendants to the plaintiff had ever been paid or discharged.

The eleventh direct interrogatory propounded by plaintiff to witness A. A. Wright was as follows: "Please make a full and elaborate statement of any other fact or facts within your knowledge that would be of benefit to plaintiff in this suit." To this interrogatory the witness answered "I would state that the pins prepared and shipped by us to Brice & Donehoo, in compliance with their order, are almost worthless to any one but them, on account of the special printing which each and every paper contains. We could not resell them, as no merchant will handle goods with another's advertisement on them." On motion of the defendants, the court excluded from the jury this answer, and to this action of the court the plaintiff duly excepted. The second interrogatory propounded by the defendants to the witnesses A. A. Wright and D. E. Wright, who was the secretary of the plaintiff, was as follows: "Did you make any investigation of the financial condition of Brice & Donehoo before sending off or accepting their order? If so, how did you make this investigation, and what did you ascertain? Did you learn the kind of business in which they were engaged, and to what extent? If so, what was the result of your investigation? Is it common to ship a country merchant as many pins as you shipped Brice & Donehoo?" The plaintiff objected to this cross interrogatory, because it calls for immaterial, illegal, and irrelevant testimony; but the court overruled this objection and the plaintiff duly excepted. The third interrogatory propounded to these two witnesses was as follows: "What is the usual amount of pins ordered by country merchants, carrying a stock of four, five, to ten thousand dollars, dealing in general merchandise?" To this cross interrogatory the plaintiff objected on the same grounds, and duly excepted to the court's overruling this objection. The fourth and fifth interrogatories propounded to said witnesses...