Brandon v. Progress Distilling Co.

• Decision Date: 09 June 1910
• Citation: 52 So. 640,167 Ala. 365
• Parties: BRANDON v. PROGRESS DISTILLING CO.
• Court: Alabama Supreme Court

52 So. 640

167 Ala. 365

BRANDON v. PROGRESS DISTILLING CO.

Supreme Court of Alabama

June 9, 1910

Appeal from Circuit Court, Madison County; D. W. Speake, Judge.

Action by the Progress Distilling Company against D. S. Brandon. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

David A. Grayson, for appellant.

S. S Pleasants, for appellee.

SAYRE J.

Donegan & Lacy had purchased whisky from the Progress Distilling Company. Suit for the purchase price was brought against Brandon on the theory that he was a member of the firm. This the appellant denied, claiming that he had been involved in the affairs of the partnership as a creditor only, and that his activity about the business constituted nothing more than an effort to collect certain money for which he had become liable as a surety, but not as a partner. This issue was tried by the court without a jury, and the chief contention here relates to the correctness of the conclusion reached in the trial court. We, however, have reached the conclusion that the case ought to be reversed on other grounds, and have pretermitted a decision on the question of fact.

There was certainly no error in the trial court's dispositions of questions of pleading. The suit had been commenced before a justice of the peace. The plaintiff there claimed the sum of $100, and had judgment for that amount. In the circuit court, on appeal, the plaintiff filed a complaint claiming an amount in excess of $100. By a motion to dismiss the cause and by a plea in abatement, defendant advanced the proposition that the court was without jurisdiction, for the reason that the amount in controversy exceeded the jurisdiction of the court in which the cause originated there having been no express remittitur of the amount claimed in excess of $100. The court overruled the motion to dismiss and struck the plea from the file. Defendant then moved to strike the complaint, which motion being granted, plaintiff amended its complaint by so framing it as to claim the sum of $100, with interest, and for that amount, with interest, judgment was rendered. In the result of all this there was no error. R. & D. R. R. Co. v. Hutto, 102 Ala. 575, 14 So. 875.

At more than one point during his examination as a witness Donegan husband of the Donegan of Donegan & Lacy, was permitted by the court, over defendant's objection, to state his judgment that defendant was a member of the partnership. There have been cases decided here in which it was held that a witness may state his judgment as to the existence vel non of facts where the facts stated were collective facts and the judgment of them was based upon knowledge of all the constituent elements. Sometimes it is impracticable to lay before the jury all the details upon which the collective fact is based. E. T. V. & G. R. R. Co. v. Watson, 90 Ala. 41, 7 So. 813; McVay v. State, 100 Ala. 110, 14 So. 862. It has been said that the soundness of the conclusion in such a case is to be tested on cross-examination. But it has never been held that a witness may usurp the function of the jury--or the court, when it passes on the facts--by stating his conclusion as to the very fact in issue between the parties. The rulings have been to the...