Espalla v. Richard

• Decision Date: 05 November 1891
• Citation: 10 So. 137,94 Ala. 159
• Parties: ESPALLA v. RICHARD ET AL.
• Court: Alabama Supreme Court

10 So. 137

94 Ala. 159

ESPALLA v. RICHARD ET AL.

Supreme Court of Alabama

November 5, 1891

Appeal from city court of Mobile, O. J. SEMMES, Judge. Reversed.

Action by S. Richard et al. against Joseph Espalla, Jr., as the administrator of the estate of Mrs. Julia Ryan, deceased, to recover the price of goods sold and delivered by the plaintiffs to Mrs. Julia Ryan. The summons was against "Joseph Espalla, Jr., as the administrator of the estate of Mrs. Julia Ryan, deceased;" and the return of the sheriff shows that a copy of the complaint and summons was served on, and the judgment was rendered against, Joseph Espalla, Jr., as the administrator of the estate of Mrs Julia Ryan, deceased. The defendant did not plead ne unques administrator, but pleaded the general issue. The only assignments of error are to the court's rulings upon the admissibility of the evidence, and upon the court's refusing to give a charge requested by the defendant. There was evidence tending to show that the goods had been sold by the plaintiffs upon the credit of Mrs. Julia Ryan, but no testimony was offered as to the administerial capacity of the defendant. The defendant asked the court, in writing, to charge the jury as follows: "The court charges the jury that, if they believe from the evidence that there is no evidence to satisfy them that said Espalla is the administrator of the said estate of Julia Ryan, deceased then the jury must find for the defendant." The court refused to give this charge, and the defendant duly excepted to such refusal. There was judgment for the plaintiffs, and the defendant brings this appeal.

W E. Richardson and Henry Chamberlain, for appellant.

Gregory L. & H. T. Smith, to appellees.

WALKER J.

The suit is on an account for goods which the plaintiffs claimed were sold by them to Mrs. Julia Ryan, deceased, the intestate of the defendant. The defendant contended that his intestate had not purchased or ordered the goods, and did not become responsible for the price thereof. There was evidence tending to show that Mrs. Ryan came to plaintiffs' place of business, and stated to a member of the firm that she was going to put her son, James Ryan, in her store to run it, and take charge of it for her, and requested plaintiffs to let him have whatever goods he wanted, as it was her business. Against the objection of the defendant the plaintiffs were permitted to introduce evidence to show that when James Ryan came into their store on a subsequent day a member of the plaintiff firm, who was waiting on him in selecting and ordering goods, on being called aside by a salesman who was standing off in the store, and asked it he was selling the goods to James Ryan, stated to the salesman that he was not selling the goods to James Ryan, but to his mother, Mrs Julia Ryan. This conversation was not in the presence of Mrs. Ryan, nor was it brought to her knowledge in any way; and the statement as to who was the purchaser of the goods was not made in the course of any transaction with her. So far as the declaration could possibly be regarded as referring to any dealings of the firm directly with Mrs. Ryan, it was merely an allusion to a past transaction. She could not be bound by what one of the plaintiffs may have said to a third person, who was a stranger to her. So far as she was concerned, the statement was merely hearsay, and upon no possible theory was it admissible against her or against the defendant as the administrator of her estate. What was said on the occasion mentioned was as inadmissible against the defendant as any conversation that one of the plaintiffs may have had at any other time with a stranger to Mrs. Ryan. It is not conceived by what method of reasoning the statement could be regarded as part of the res gestæ of the transaction had with Mrs. Ryan on a former day. Stallings v. Hinson, 49 Ala. 92; Martin v. Hardesty, 27 Ala. 458; Lavender v. Hall, 60 Ala. 214; Smith v. Flagg, 46 Ala. 624; Tamplin v. Still, 77 Ala. 374; Hart v. Kendall, 82 Ala. 144, 3 South. Rep. 41; Railroad Co. v. Womack, 84 Ala. 149, 4 South. Rep. 618. It is suggested for the appellees that there was a failure to specify any particular ground of objection to the admissibility of this evidence. The illegality of the evidence was apparent upon its face. To ascertain this it was not necessary for the court to look to any fact that was not stated by the witness in detailing the conversation. No casting around to discover a ground of exclusion was required. It was obvious, without reference to any extrinsic fact, that Mr. Richard's statement to the salesman in his store was mere hearsay, so far as Mrs. Ryan was concerned. In such case the court should sustain the objection, without demanding a specification of what is already patent. The general rule requiring the ground of objection to be stated did not apply. Richards v. Bestor, 90 Ala. 352, 8 South. Rep. 30; Pool v. Devers, 30 Ala. 672; Cunningham v. Cochran, 18 Ala. 479. This case was tried before the adoption of the rule of practice...