Bertolla v. Kaiser

• Decision Date: 29 May 1958
• Docket Number: 1 Div. 640
• Citation: 103 So.2d 736,267 Ala. 435
• Parties: Angelo F. BERTOLLA et al., d/b/a A. Bertolla & Sons v. Paul KAISER, Jr.
• Court: Alabama Supreme Court

Page 736

103 So.2d 736

267 Ala. 435

Angelo F. BERTOLLA et al., d/b/a A. Bertolla & Sons v. Paul KAISER, Jr.

1 Div. 640.

Supreme Court of Alabama.

May 29, 1958.

Beebe & Swearingen, Bay Minette, and Hill, Hill, Stovall & Carter, Montgomery, for appellants.

Chason & Stone, Bay Minette, for appellee.

COLEMAN, Justice.

Appellee sued appellants and recovered a verdict and judgment thereon. We hereinafter refer to the parties as plaintiff and defendants. Defendants have appealed.

The case arose out of an alleged breach of an agreement relating to the purchase of Irish potatoes. Plaintiff had agreed to purchase potatoes from the producers at the prevailing price, or at a price fixed by defendants, and to sell and deliver the potatoes so purchased to the defendants, who agreed to pay plaintiff a stipulated commission or profit. Plaintiff alleges that he purchased certain potatoes in accordance with the agreement and delivered the same to defendants, but that defendants refused to pay the full price according to the agreement. Plaintiff sues for the unpaid balance allegedly due.

The amended complaint sets out plaintiff's claim in four counts. Court One is for money due on account, and Count Two is for money paid by plaintiff for defendants at their request, both counts being in Code form. Title 7, § 223(10). Counts Three and Four claim or breach of an alleged contract whereby plaintiff agreed to purchase potatoes from the producers thereof and to sell said potatoes to defendants who agreed to purchase the same from plaintiff, all according to the terms of the alleged agreement.

The potatoes in suit, are alleged to be those bought by plaintiff during the period from May 31, 1954, to June 7, 1954, both dates inclusive. Plaintiff alleges that he bought for and delivered to defendants, potatoes in the amount of $37,009.55, including his costs and commissions due from defendants, and that defendants have paid plaintiff $20,676.25, but owe and refuse to pay the balance of $16,333.30, for which plaintiff asks judgment.

In Count Three, plaintiff alleges the amount, $37,009.55, to be according to 'the prevailing market price,' and in Count Four, said amount is alleged to be according to 'the price * * * as fixed by the Defendants.'

The parties pleaded at length. Demurrers were interposed at each step, and, after amendment of the respective pleadings to which they were directed, all demurrers were overruled. There is no assignment of error as to pleadings.

An issue of fact was developed as follows: To the complaint, defendants filed pleas of the general issue, payment, accord and satisfaction, and setoff. The latter pleas, as stated in defendants' brief, charge that 'plaintiff made false representations to defendants concerning the grade of potatoes, that defendants believed and acted upon said false representations, received the potatoes, and then paid plaintiff for the potatoes in full at the prevailing price for 'unclassified' potatoes; 'unclassified' being the true grade of the potatoes (T-22). Defendants further pleaded that plaintiff had falsely and fraudulently represented the potatoes to be of 'commercial' grade when they were in fact 'unclassified." From the record, it appears that 'unclassified' potatoes are usually of less value than 'commercial' potatoes.

To the pleas, plaintiff replied, 1, the general issue, and 2, plaintiff admitted that a substantial part of the potatoes in suit were not 'commercial' grade but were 'unclassified.' In avoidance of this admission, however, plaintiff replied further that he had notified defendants of the fact that the potatoes were 'unclassified,' whereupon 'the Defendants, acting by and through Mike Juliana, as their agent, servant or employee, while acting within the line and scope of his employment as such, told the Plaintiff to pay commercial prices for all potatoes received by him which, because of internal discoloration, were graded as unclassified and that the Plaintiff did pay for said potatoes the price then prevailing for commercial potatoes and in accordance with an arrangement made with the Defendants.'

To replication 2, defendants rejoined that 'The matters therein alleged are untrue.'

On the issue of fact made by the pleadings, that is, whether or not Mike Guliani authorized plaintiff to pay the higher price for the less valuable potatoes, the evidence is in sharp conflict. Plaintiff testified that he was so authorized, but Guliani flatly denied that he had ever authorized plaintiff to pay such price. The jury, by its verdict, resolved the issue in favor of the plaintiff. No requested charge or motion for new trial appears in the record. The assignments of error presenting a question for review relate to rulings on admission and rejection of evidence.

Assignments of Error 1 to 9.

Assignment of error 1 recites:

'1. The verdict and judgment are contrary to the law and the evidence.'

Assignments 2 through 9 are to like effect. Such assignments are not sufficient to present any question for our review. King v. Jackson, 264 Ala. 339, 87 So.2d 623; Supreme Court Rule 1, Code 1940, Tit. 7 Appendix.

Assignments of Error 10 and 16.

Assignment 10 recites:

'10. The Court erred in overruling defendants' objection to the plaintiff's testimony as to the price paid by him for potatoes.',

and Assignment 16 recites:

'16. The Court erred in denying defendants' motion to exclude testimony of the plaintiff that he paid commercial price for the potatoes, the plaintiff having testified that he paid for the same by check.'

These assignments are argued together to the effect, as stated in appellants' brief, that: 'Where the price actually paid for an article becomes an issue in a case, oral testimony should not be allowed where the payments were made by checks and the checks are available.'

The record referred to in support of Assignment 16 recites as follows:

'Mr. Beebe: May it please the Court, we move to exclude the testimony of the Plaintiff that he paid commercial prices for these potatoes, because it shows that the payment was made by check and the checks are the best evidence and his testimony as to that is inadmissible.

'Mr. Stone: He is objecting to his own testimony, because he is the one that asked the questions.

'The Court: You mean to say that a man can't testify from memory, and the check is the best evidence from this man himself?

'Mr. Beebe: Yes.

'The Court: Deny your motion.

'Mr. Beebe: We except.'

Defendants' argument, as appears from their answer to the trial court, is in substance, that parol evidence of the payment of money is not admissible where written evidence of such payment exists, unless the absence of the written evidence is first accounted for. Such is not the law as we understand it. As early as 1843, this court said:

'In the case of Keene v. Meade, 3 Pet. [1,] 7 and 8 a witness proved a payment of $250 for the plaintiff, and stated that the defendant made the entry on the plaintiff's rough cash book himself, writing his name at full length. The witness fully proved the payment of the money, but the defendant objected to such proof as written evidence of the payment existed and should be produced. Mr. Justice Thompson, in delivering the opinion of the court, remarked, among other things: 'This objection we think not well founded. The evidence of the advance made by the defendant himself under the circumstances stated, cannot be considered better evidence, within the sense and meaning of the rule on that subject, than proof of the actual payment.' Again, he remarked, 'it cannot be laid down as a universal rule, that when written evidence of a fact exists, all parol evidence of the same fact must be excluded. Suppose the defendant had written a letter to the plaintiff, acknowledging the receipt of the money, it certainly could not be pretended, that the production of the letter would be indispensable, and exclude all parol evidence of the advance, and yet it would be written evidence.'

'In the case of the administrator of Wiggins' [Adm'rs] v. Administrator of Pryor, 3 Port. 430, this doctrine was fully recognized. In that case a witness in deposing to the payment of the amount of a note, spoke of a receipt having been given. It was objected that parol evidence of the payment could not be given; that the receipt must be produced, or its absence accounted for. But this court held, that there was no error, and fully recognized the competency of the parol evidence of the payment. See, also [Sally's Adm'rs v. Capps] 1 Ala. 121.' Planters' & Merchants' Bank of Mobile v. Borland, 5 Ala. 531, 544, 545.

In the instant case, the contents of a check or checks was not the matter in issue. The fact of payment for the potatoes and the amount paid was the matter in issue. If plaintiff knew that payment in a certain amount had been made, then his testimony as to that fact was properly admitted without producing the checks or accounting for their absence. Assignments 10 and 16 are without merit.

Assignments of Error 11, 13, 14, 15 and 17.

Defendants argue in bulk these assignments which complain of the action of the trial court in sustaining objections to questions propounded to the plaintiff and sustaining objections to the use of plaintiff's records, to show 'the amounts of potatoes involved that he (plaintiff) had purchased for the Bertollas, and the amounts which he had grown and which he owned and which he had not, even under his original contentions, purchased for the Bertollas at the 'prevailing price." (Parentheses added.)

As we understand the defendants' argument, they do not contend that plaintiff failed to deliver the quantity of potatoes claimed to have been bought for defendants. By their pleadings, defendants contended that the potatoes delivered were not of the quality represented. At the trial, defendants sought to examine plaintiff's records, not for the purpose of showing that quality had been misrepresented, but to show that...