Butterworth & Lowe v. Cathcart

• Decision Date: 03 February 1910
• Parties: BUTTERWORTH & LOWE v. CATHCART.
• Court: Alabama Supreme Court

52 So. 896

168 Ala. 262

BUTTERWORTH & LOWE v. CATHCART.

Supreme Court of Alabama

February 3, 1910

Rehearing Denied June 30, 1910.

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

Action by Butterworth & Lowe against John Cathcart. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

The issues and evidence are sufficiently indicated in the opinion. The following is charge 6, refused to the plaintiff "If the jury believe from the evidence that plaintiff shipped the defendant such cars as defendant ordered, and if you further believe that at the time said cars were delivered to the railroad company they were in perfect condition and free from defects and other imperfections, and if you further believe from the evidence that said wheels were consigned to the defendant, and the bill of lading was issued to him, and mailed to him, then I charge you that, if you believe that, a delivery to said railroad was a delivery to the defendant and title vested in the defendant from the date of such delivery to the railroad."

Lowe &amp Tidwell, for appellant.

E. W Godbey, for appellee.

SAYRE J.

Plaintiff, a corporation, being a nonresident, Messrs. Lowe & Tidwell became security for costs. Judgment having been rendered for the defendant, the court, without motion or judgment against the sureties, ordered that execution issue against them for the costs. Appellant, which was plaintiff in the court below, assigns that order for error. There are two equally conclusive reasons why that assignment cannot be sustained in this court. For one, there is no judgment against the sureties to support an appeal, but only an improvident order which the court below will correct on application. Dow Wire Works Co. v. Engelhardt, 136 Ala. 608, 33 So. 817. For the other, appellant cannot be heard to complain of an order, however erroneous, which is not prejudicial to it. Eslava v. Farley, 72 Ala. 214.

This suit was for the recovery of the contract price of the iron parts of two tram cars sold by the plaintiff to the defendant. Exceptions were reserved to several rulings excluding parts of the testimony of plaintiff's witness Vyn to the effect that defendant had given no instructions as to how the tram cars were to be shipped, and that they had been shipped by rail and bill of lading forwarded to defendant by mail. The ground of the exclusion was that witness' subsequent testimony disclosed that he had no personal knowledge of the facts in question. If the ground was not well taken, it was nevertheless true that evidence subsequently introduced and the further progress of the trial deprived these rulings of injurious consequences. There was other uncontradicted testimony, as to the competency of which no objection was taken, that the defendant gave no directions whatever as to the shipment of the tram cars, while the defendant, testifying for himself and through the mouths of other witnesses, unreservedly admitted that the articles had been actually received by him, though not delivered according to the contract because, as he contended, they were defective when shipped. Thus any issues upon which the testimony in question may have had a bearing were removed from the case.

Appellant complains that the court admitted the letter dated February 22, 1905, and purporting to have been written by it, without sufficient proof of its authenticity. Some proof of genuineness was requisite, of course. The language of the letter abundantly indicated that it had been written in reply to defendant's letter of two days before. But authentication by contents alone is insufficient. A rule permitting that would leave parties no safeguard whatever against fabrication. The authorities generally state that the receipt by due course of mail of a letter shown by its contents to be related to another of antecedent date and mailing is sufficient to warrant its introduction in evidence. Such was the case in White v. Tolliver, 110 Ala. 300, 20 So. 97. This rule depends upon the habitual accuracy and promptness of the mails, and the fact that the tenor of the letter as a reply to an antecedent letter indicates a knowledge of the tenor of the antecedent. It is formulated in 3 Wigmore on Evidence, as follows: "There seems to be here adequate...