Bolling v. Fannin

• Decision Date: 16 December 1892
• Citation: 97 Ala. 619,12 So. 59
• Parties: BOLLING v. FANNIN.
• Court: Alabama Supreme Court

12 So. 59

97 Ala. 619

BOLLING v. FANNIN.

Supreme Court of Alabama

December 16, 1892

Appeal from city court of Montgomery; Thomas M. Arrington, Judge.

Detinue by Phillip G. Fannin against R. E. Bolling. From a judgment for plaintiff, defendant appeals. Reversed.

E. P Morrisette, for appellant.

A. A Wiley, for appellee.

COLEMAN J.

The appellee sued defendant, Bolling, in detinue to recover a mule called "Pete," and damages for its detention. To recover in detinue it is incumbent upon the plaintiff to show the possession of the defendant at the time of the institution of the suit. Behr v Gerson, (Ala.) 11 South. Rep. 115; Graham v. Myers, 74 Ala. 434; Gilbreath v. Jones, 66 Ala. 129; Miller v Hampton, 37 Ala. 342. This principle of law was relied upon as a defense to the present action. The summons issued on the 13th of January, and returned executed on the 14th of January, 1891. The testimony of the defendant, R. E. Bolling tended to show a sale of the mule and its delivery to the purchaser on the 30th of December, 1890, some two weeks prior to the institution of the suit. He testified that the mule "Pete" was sold for $60, and the money paid immediately to McCombs, who was his cashier. This witness could not say whether he made the sale of the mule himself, or whether it was made by his son, Elliott Bolling. The son, Elliott Bolling, testified that sometimes he made the sales of mules, and sometimes his father, and sometimes both together; that the mules were sold during the months of December, January, and February, and as for this particular mule he did not remember whether he or his father concluded the sale, or the month in which it was sold, but that they were all sold for cash, and the money immediately paid to the cashier, McCombs. The defendant then offered in evidence his cashbook and an entry made by the cashier, McCombs, in the regular line of business. This entry showed that on the 30th of December he received $60 for a mule, "Pete," and proposed to prove, in connection therewith, by the cashier, that the money was handed him either by R. E. Bolling or Elliott Bolling. The cashier testified that "he had no recollection of the matter apart from his book; that he never sold any of the mules, and knew nothing about any transaction in connection therewith, except what he derived from hearsay." The record states that the testimony of the witness McCombs and the entry in the cashbook were offered as evidence "tending to show that the mule 'Pete' was sold and passed out of possession on the 30th of December, 1890," the date of the entry. The court "sustained an objection to the testimony, and excluded the same from the jury." This ruling is assigned as error.

We must treat the question as presented in the bill of exceptions. The rule declared in Moore v. Andrews, 5 Port. (Ala.) 107, and afterwards followed in Nolley v Holmes, 3 Ala. 642, "that entries make by a tradesman in his book, stating the delivery of goods, are not evidence in his favor," has been declared to be against the weight of authority, and may be regarded as overruled. McDonald v. Carnes, 90 Ala. 148, 7 South. Rep. 919. The rule as settled is that a witness may refresh his memory by reference to a memorandum made by himself, or one known to him to state the facts truly. In such case the memorandum is not evidence. The witness testifies to the facts independent of the memorandum. Its only purpose in such a case is to refresh his memory. A further rule is that, though the witness may have no recollection of the facts...