Bear v. Swift & Co.
| Decision Date | 12 November 1953 |
| Docket Number | 1 Div. 531 |
| Citation | 68 So.2d 718,259 Ala. 668 |
| Court | Alabama Supreme Court |
| Parties | BEAR et al. v. SWIFT & CO. |
Chas. Hoffman, Mobile, for appellants.
M. A. Marsal, Mobile, for appellee.
The appellee sued the appellants declaring through counts on an open account, an account stated, and for merchandise, goods and chattels sold by appellee to appellants. The complaint recites that a verified statement of account is filed therewith. There was affdavit by appellants, defendants below, denying the correctness of the verified statement of account so filed.
Upon the conclusion of the evidence, the trial court gave affirmative instructions in favor of the defendants as to Counts 2 and 3. The case went to the jury on plaintiff's Count 1, which declared upon an open account, and the defendants' plea of the general issue.
There was jury verdict in favor of the plaintiff. Judgment was in accord with the verdict of the jury. From such judgment the defendants have appealed to this court.
The plaintiff Swift & Company, operates an ice cream plant in Miami, Florida. Defendants, Adele and Joseph Bear, are partners, doing business as Bear Ice Cream Company, with their principal place of business in Mobile, Alabama.
The account sued upon is for ice cream products in the amount of $1,530.48, which plaintiff claims it delivered in September, 1950, to an ice cream distribution business in Miami Known as Frozen Sweets.
In September, 1950, the ice cream distribution business referred to in the evidence by plaintiff's witness as Forzen Sweets and by defendants' witness as Simmonds Frozen Sweets was under the management of one Johnny Simmonds.
Defendants concede that from August, 1948, until March 16, 1950, they owned and operated the business known as Frozen Sweets. But defendants' testimony is to the effect that they abandoned the operation of Frozen Sweets on or about March 16, 1950, and rented their equipment to Johnny Simmonds, a former employee, who thereafter operated the business on his own account under the name of Simmonds Frozen Sweets.
Plaintiff could recover upon a finding that defendants were the real owners of the business, and Simmonds their agent to run it for their benefit, or that Simmonds had general authority to buy for his stock in their name, or that defendants knowingly acquiesced in the purchases in their name. Gillespie, Shields & Co. v. I. Berman & Son, 212 Ala. 72, 101 So. 681.
In view of the evidence offered on behalf of the plaintiff, these were all questions for the jury and the affirmative charge as to Count 1 was properly refused. The rule is well established that in passing on the correctness of the trial court's action in refusing an affirmative instruction requested by the defendant, we consider the evidence in its most favorable aspect for the plaintiff. See Texas Co. v. Harold, 228 Ala. 350, 153 So. 442, 92 A.L.R. 523.
The verified statement of account filed with the complaint was improperly admitted in evidence in view of the counter affidavit of defendants. Booker v. Benson Hardware Co., 216 Ala. 398, 113 So. 256. However, the trial court later announced that it had erred in admitting the sworn statement of account in evidence and sustained defendants' objection thereto. Counsel for plaintiff thereupon announced the withdrawal of the said sworn statement from evidence. In view of such action, we are unwilling to reverse the judgment appealed from because of the initial ruling of the court permitting the introduction of that piece of evidence. Reese v. Mackentepe, 224 Ala. 372, 140 So. 550.
Plaintiff did not offer in evidence any books of account. Aside from the sworn statement of account which, as shown above, was withdrawn from the evidence, the only evidence which plaintiff offered in support of its allegation that the sum of $1,530.48, with interest, was due it by the defendants was the parol testimony of Norville C. McFarland, the general manager of plaintiff's Miami ice cream plant.
Mr. McFarland was permitted to state, over objection, that according to a piece of paper shown to him during the course of his direct examination, the defendants owed the plaintiff the sum of $1,530.48. As indicated above, there was no effort on the part of plaintiff to introduce the piece of paper in evidence and it does not appear in this record on appeal. The witness, McFarland, had previously stated that he was the manager ager of plaintiff's ice cream plant in Miami; that the records and...
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Jones v. State
...include the testimony of a witness who is not shown to have personal knowledge of the record or the contents thereof. Bear v. Swift & Co., 259 Ala. 668, 68 So.2d 718 (1953). The principle applies to criminal cases also. Pierce v. State, 42 Ala.App. 53, 151 So.2d 793 (1963); Headley v. State......
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Campbell v. Regal Typewriter Co., Inc.
...constitute the best evidence of the amount due from Campbell to Regal. In making this argument, Campbell relies upon Bear v. Swift & Co., 259 Ala. 668, 68 So.2d 718 (1953). In that case, this court held that a witness, who had no personal knowledge of the ledger sheets, which were not in ev......
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Pierce v. State
...meets the requirements of this statute, it is not acceptable into evidence unless it also meets the best evidence rule. Bear v. Swift & Co., 259 Ala. 668, 68 So.2d 718. State Exhibit C is a writing made as a memorandum of the fact that the records of U. S. Pipe and Foundry show that Extra P......