Drum v. Harrison

• Decision Date: 13 February 1888
• Citation: 83 Ala. 384,3 So. 715
• Parties: DRUM ET AL. v. HARRISON.
• Court: Alabama Supreme Court

3 So. 715

83 Ala. 384

DRUM ET AL. v. HARRISON.

Supreme Court of Alabama

February 13, 1888

Appeal from circuit court, Butler county; JOHN P. HUBBARD, Judge.

This was an action for damages brought by William Harrison against Drum & Ezekiel, a mercantile firm. During the pendency of the suit the plaintiff died, and the suit was revived in the name of William G. Harrison, as executor of the said William Harrison, deceased; and in the name of these parties respectively was the suit prosecuted to the end in the lower court, and then brought here on direct appeal therefrom. The action was for the recovery of damages alleged to have been suffered by the plaintiff's testator on account of the defendants buying two bales of cotton, on which the plaintiff's testator had a lien, and this lien was known to the said defendants. Issue was joined on the plea of the general issue, with leave to give in evidence any matter of special defense. The plaintiff introduced in evidence a note and mortgage made by one J. H. Kolb to the said William Harrison, dated December 22, 1884, which gave the mortgagee a lien on all the crop to be grown by J. H. Kolb during the following year, and which was duly recorded in the probate office of the county; and it was for the violation of rights arising from this mortgage and statutory lien that the plaintiff claims damages from the defendants. The evidence as shown by the bill of exceptions, tended to show that the bales of cotton in controversy were raised by Kolb on land cultivated by him during the year 1885; that it was ginned and packed by Kolb; that, in the fall of the year 1885, they were carried to the town of Greenville by one Philip Thomas who worked for and with J. H. Kolb during the year 1885; that after the said two bales of cotton were carried to Greenville, Philip Thomas sold them to the defendants, who paid Thomas the money therefor; and that cotton was selling at that time for eight or nine cents per pound. But no evidence was introduced as to the weight of the two bales sold to the defendants. And the evidence further tended to show that the plaintiff's testator, William Harrison, had told Kolb that he (Kolb) might sell the cotton raised by him but that he must bring him the money; and there was some evidence tending to show that this had been communicated to the defendants, or that they knew that William Harrison had told Kolb this. In the examination of one of the witnesses who had said that he was with Philip Thomas when he sold the two bales of cotton to the defendants, the witness was asked if "Thomas did not claim that the said cotton while it was in his possession was the cotton of the said Kolb, and if the said cotton was not sold to the defendants as Kolb's cotton?" To this question and the answer thereto the defendants objected, and duly excepted to the court's overruling their objection.

The defendants introduced as one of their witnesses, one H. Z Wilkinson, who testified that the plaintiff's testator, once, while talking to him, had said that he "gave Kolb permission to sell said cotton, and told said Kolb to bring him the money;" and further, "that he always gave this permission to those tenants who owed him." On cross-examination, "for the purpose of showing the animus of the witness, the plaintiff asked the witness if he was not sued for some of the same crop of cotton?" To this the defendants objected, and the court overruled their objection; but the bill of exceptions does not show that they reserved any exception to this ruling of the court. For the same purpose, of showing the animus of the witness, the plaintiff asked permission to introduce in evidence the summons and complaint in the suit at that time pending by William Harrison v. H. Z. Wilkinson, (the witness.) To the introduction of these papers the defendants objected on the ground "that the plaintiff had rested his case, and the defendant was now introducing evidence, and that the plaintiff had no right to introduce the summons and complaint at that stage of the case, and, second, that it was immaterial and irrelevant." The court overruled each of these objections, and allowed the plaintiff to introduce the summons and complaint against the witness. To the overruling of these objections by the court, the defendants separately excepted. "The witness was then asked, if he had ever told any one that his defense to the said suit against him was that Harrison had given permission for said cotton to be sold?" To this question the defendants objected, and duly excepted to the court's overruling their objection, and allowing the witness to answer the question. The defendants then introduced Ezekiel, one of the defendants, as a witness, and offered to prove by him a conversation had by him with William Harrison, deceased, "wherein Harrison admitted that he gave his permission to sell said cotton." The plaintiff objected, and the court sustained his objection, whereupon the defendants excepted. This was in substance all of the evidence. And the court then charged the jury in writing at the request of the plaintiff, as follows: (4) "The court charges the jury that, unless the evidence in this case reasonably satisfies them that Harrison gave authority to sell these two bales of cotton, they then should find for the plaintiff so far as permission is concerned." (5) "The court further charges the jury that a permission to J. H. Kolb to sell the cotton is no permission to Philip Thomas to sell the cotton, and if the permission shown in evidence was to J. H. Kolb to sell the cotton, this gave Kolb no authority to delegate this authority to Philip Thomas to sell the cotton." (6) "If the proof shows that Philip Thomas sold the cotton in controversy, and no permission was given him...