D.S. Pate Lumber Co. v. Davis
| Decision Date | 24 March 1927 |
| Docket Number | 6 Div. 721 |
| Citation | 215 Ala. 547,112 So. 124 |
| Parties | D.S. PATE LUMBER CO. v. DAVIS et al. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Lamar County; Ernest Lacy, Judge.
Action by the D.S. Pate Lumber Company against S.K. Davis and W.F. McGee. From a judgment for defendants, plaintiff appeals. Transferred from the Court of Appeals, under Code 1923, § 7326. Affirmed.
J.C. Milner, of Vernon, for appellant.
R.G. Redden, of Vernon, for appellees.
If, as testified by defendants, plaintiff advanced to defendants $15 per thousand, and guaranteed to them a price of not less than $17 per thousand for the two carloads of lumber, though plaintiff was handling it on a commission basis, and not as a purchaser, it is obvious that a balance was due to defendants of $2 per thousand on the aggregate of nearly 40,000 feet. Hence the requested instructions numbered 3 and 4 were properly refused, as ignoring that phase of the evidence.
In support of its motion for a continuance or postponement of the trial in order to secure the presence of Holsapple as a witness, in contradiction of defendants' testimony that the transaction as to the lumber was with him, there was no showing made as to what Holsapple's testimony would be, if present. Hence it cannot be affirmed that the overruling of the motion was prejudicial error, nor that it was an obvious and palpable abuse of the trial court's discretion. Knowles v. Blue, 209 Ala. 27, 32, 95 So. 481. In such a case, the proper practice would be to also move for a new trial on the ground of surprise, with proof that Holsapple's testimony would, in fact, substantially contradict defendants' testimony as to their alleged transacion with him. Hoskins v. Hight, 95 Ala. 284, 11 So. 253.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
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Hudson v. State
... ... discretion ... [116 So. 802] ... D.S. Pate Lumber Co. v. Davis et al., 215 Ala. 547, ... 112 So. 124; Knowles v ... ...
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Mobile Cab & Baggage Co. v. Busby
...that the testimony of the absent witness would be more than cumulative. Knowles v. Blue, 209 Ala. 27, 95 So. 481; Pate Lumber Company v. Davis, 215 Ala. 547, 112 So. 124. The refusing of a continuance because of an absent witness, where it is not shown what the witness would say if present,......
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Hull v. State
... ... Hudson v. State, 217 Ala. 479, 116 ... So. 800; D.S. Pate Lumber Co. v. Davis et al., 215 ... Ala. 547, 112 So. 124; Knowles v ... ...
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Hawkins v. State, 5 Div. 92.
... ... committed prejudicial error. D. S. Pate Lumber Co. v ... Davis, 215 Ala. 547, 112 So. 124; Ragland v ... ...