Buford v. Graden

• Decision Date: 09 May 1912
• Citation: 59 So. 368,5 Ala.App. 421
• Parties: BUFORD v. GRADEN.
• Court: Alabama Court of Appeals

59 So. 368

5 Ala.App. 421

BUFORD v. GRADEN.

Court of Appeals of Alabama

May 9, 1912

Rehearing Denied June 19, 1912.

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

Action by John T. Graden against John W. Buford. Judgment for plaintiff; defendant appeals. Reversed and remanded.

John A. Lusk & Son, of Guntersville, for appellant.

McCord & Orr, of Albertville, for appellee.

DE GRAFFENRIED, J.

On the 18th day of May, 1909, John T. Graden, the appellee, made a contract with John W. Buford, the appellant, whereby the appellee agreed to work for the appellant as a salesman of a patent churn and the patent right to sell the patent churn in certain territories. The appellee was to receive $25 for the first month and $40 per month for the balance of the time. The appellant was to pay all the expenses, as it is expressed in the contract, of travel and sale of said churn, except says the contract, "Graden is to pay one-half of the expenses in going out." Shortly after making the contract, Graden, with one Downey, went to Texas, where some effort appears to have been made to exploit the churn. We are therefore, from the acts of the parties, justified in concluding that it was contemplated between them, when the contract was made, that Graden was to offer the churn and territory rights for sale in Texas, and that the expression "Graden is to pay one-half of the expenses in going out," meant that Graden was to pay one-half of the traveling expenses in going to Texas, but no more. The appellee claims that he went to Texas along with Downey, and undertook to carry out his part of the contract, but that the appellant failed or refused to furnish him with the necessary traveling expenses, and that he thereupon abandoned the contract. This suit was brought by the appellee to recover of the appellant the damages which he claims, he sustained by reason of the alleged breach by appellant of the contract.

1. The first and second assignments of error challenge the correctness of the ruling of the trial court in the admission of certain evidence. The manner in which the exceptions were taken, which are made the basis of these assignments of error, is so imperfectly shown by the bill of exceptions that we are not able to say that it is affirmatively shown that the objections to the testimony were seasonably made. The recitals in the bill of exceptions on this subject are as follows: "The plaintiff's counsel then handed to the witness [the appellee] a paper, which the witness said in reply to question by defendant that it was made in 1909. In reply to question by plaintiff's attorney, that he made it in July or August, 1909, and that it is correct, and that he had paid out in all $97.97, calling over the items from the paper. To all of this the defendant objected. The court permitted the witness to read these items from the paper, and to this ruling of the court the defendant then and there duly excepted." Whether the appellant objected to the witness being allowed to call the items from the paper before or after he had called them over, we do not know; and whether the exception to the ruling of the court in permitting the witness to read them from the paper was made before or after the witness had read them from the paper, we do not know. Neither do we know what any of the items were. It may be that many of them were items of admitted expense, about which there was no dispute. The appellant may have intended to object--and it may be that he properly objected--to the court's permitting the witness to use the paper as a memorandum from which to refresh his memory; but, if so, the bill of exceptions fails to show it with that sufficient clearness which the law requires. A bill of exceptions is construed most strongly against the party excepting, and these exceptions to the action of the trial court are stated with too much indefiniteness for us to undertake to say that the action of the court was subject to the general objections interposed by appellant. Milliken v. Maund, 110 Ala 332, 20 So. 310.

2. It appears that the appellee took two trips to Texas in the matter of the sale of the churn under the contract. He first went with Downey, who had some business arrangement in the nature of a partnership with appellant, and with whom appellee was to co-operate, and who, it appears, had some sort of supervision over appellee, and was to furnish the appellee, for appellant, his expense money. The appellee and Downey seem to have done but little, if anything, of value while the appellee was in Texas on the first trip. On this subject the appellee testified: "That he was at Bonner Texas, with Downey. That he and Downey had made a deal with a man near there, and were about to close it when a Mr. Mason said he was going to have half of the price the man was to pay. That Downey said, under the circumstances, he was going up in Oklahoma to see his nephew, and that he [appellee] could do as he pleased. That Downey said he was not going to work any more until he got the Moody churn. That he thought the Moody churn would be out soon. That he [appellee] came back home and his expenses [of the return trip] were $17.50. That he had worked at the business in Texas 14 days, which he figured at 95 cents per day. That when he came back he reported to Buford, the appellant. He said that he wanted him [appellee] to go back with him [appellant] to Texas when he got the Moody model. That he and appellant did go back to Texas. That he had a return ticket to Texas, the cost of which was included in the above-stated costs of the return home, $17.50. After they got to Bonner, appellant paid his [appellee's] railroad fare...