Dickens v. Murray & Peppers

• Decision Date: 16 December 1909
• Parties: DICKENS v. MURRAY & PEPPERS.
• Court: Alabama Supreme Court

50 So. 1019

163 Ala. 556

DICKENS v. MURRAY & PEPPERS.

Supreme Court of Alabama

December 16, 1909

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by Murray & Peppers against Charles C. Dickens. Judgment for plaintiffs, and defendant appeals. Affirmed.

For the facts in this case, see the former report thereof in 149 Ala 240, 42 So. 1031. The following charges were given at the request of the plaintiff: (2) "If you are reasonably satisfied from the evidence in this case that the plaintiffs rented the hoister to the defendant at $10 per day, and that the defendant used the hoister under the contract, then you must find for the plaintiffs, unless you are reasonably satisfied from the evidence that defendant has paid the plaintiffs in full for the use of the hoister, and the burden of proving payment is on the defendant." (3) "The court charges the jury that if you are reasonably satisfied from the evidence that defendant used plaintiffs' hoister under an agreement that he would pay them $10 for each day he used it, and that he has not paid them in full for the use of the hoister, then you must find for the plaintiffs, and assess their damages at such an amount as will compensate them, at the rate of $10 per day for the number of days that remain unpaid for." (4) "The court charges the jury that if you are reasonably satisfied from the evidence in this case that plaintiffs rented a hoister to defendant at the rate of $10 per day for each day the hoister worked, and that defendant used the hoister under this agreement, and has not paid plaintiffs in full for its use, then you must find for the plaintiffs, and assess their damages at such a sum as will compensate them, at the rate of $10 per day for each day defendant used the hoister and failed to pay the plaintiffs." (7) "The court charges the jury that if you find for the plaintiffs, the plaintiffs are entitled to recover $10 a day for each day unpaid for, together with interest at the rate of 8 per cent. per annum from the date payment should have been made to the date of trial."

Gregory L. & H. T. Smith, for appellant.

Fitts &amp Leigh, for appellees.

DOWDELL C.J.

This is an action on the common counts. The pleas are the general issue and payment. There is no dispute as to the terms of the contract, which was verbal, for the rent of the boat and hoist. The rent was at the rate of $10 per day while the boat and hoist were operated. It was agreed in open court that $750 had been paid on the rent under the verbal contract fixing it at the rate of $10 per day while the machine was in use, and which said contract covered a period from September 28, 1903, to April 5, 1904. The real controversy is as to the number of days the machine was in use.

In establishing their claim the plaintiffs introduced in evidence certain book entries, set out in the transcript before us, showing the number of days that the machine was operated by the defendant. Peppers, one of the plaintiffs, examined as a witness, testified that he made the entries, and that he made them from weekly statements made to him by Steadham, the engineer in charge of the boat and hoist. The witness testified to the correctness of the entries as made by him from Steadham's statements. Steadham testified to making weekly statements to Peppers, and that Peppers entered them in the book as he made them to him. This witness further testified that the weekly statements made by him to Peppers correctly showed the number of days the boat and hoist were used by the defendant. On this state of the evidence, it was on the former appeal in this case ( Murray & Peppers v. Dickens, 149 Ala. 240, 42 So. 1031) ruled that the original entries so made were competent and admissible, citing authorities in support of the ruling; and we now adhere to that decision.

It is insisted, however, by the appellant, that the evidence showed that the witness Steadham was sick and absent from the work for three weeks from the 28th day of September, 1903, and could not have had any personal knowledge of the number of days that the boat and hoist were used during that period and that the trial court therefore erred in overruling the appellant's motion to exclude from the evidence that portion of the book entries made by Peppers, showing the number of days of work during said period. The witness Steadham testified that he carried the boat to Dickens' landing, and returned to Mobile, and was sick and absent three weeks; but he did not state when he carried the boat to Dickens' landing, and, for aught that appears from his testimony, it might have been three weeks before he began to make any statements to Peppers. He testified that the statements he made to Peppers, as to the dates the boat and hoist worked, were correct; and Peppers testified that the entries were made from the statements given in to him by Steadham. It is true that, after the motion to exclude had been ruled on, the defendant, testifying as a witness in his own behalf, stated that Steadham was absent for three weeks from the 28th day of September; but no motion to exclude was made after the introduction of this evidence. Moreover, the motion to exclude was single and entire as to three weeks commencing with September 28th, and there was evidence by the defendant himself that he sent in to the plaintiffs a statement...