Forehand v. White Sewing Mach. Co.

• Decision Date: 04 November 1915
• Docket Number: 4 Div. 547
• Citation: 195 Ala. 208,70 So. 147
• Parties: FOREHAND v. WHITE SEWING MACH. CO.
• Court: Alabama Supreme Court

70 So. 147

195 Ala. 208

FOREHAND v. WHITE SEWING MACH. CO.

4 Div. 547

Supreme Court of Alabama

November 4, 1915

Appeal from Circuit Court, Coffee County; H.A. Pearce, Judge.

Assumpsit by the White Sewing Machine Company against M.O. Forehand. Judgment for plaintiff and defendant appeals. Affirmed.

H.L Martin, of Ozark, for appellant.

R.H Arrington, of Enterprise, for appellee.

SAYRE J.

Action by appellee against appellant for the price of 50 sewing machines.

It may be conceded that appellee's interrogatory to the witness Chase did not call for a copy of appellant's order for the machines on account of which he was being sued; but the order, if genuine, constituted the contract between the parties, and was, of course, relevant and material to the issue of appellant's liability. It is well settled that only the party asking the question may object to such an answer on the peculiar ground that it is not responsive. So likewise, the copy exhibited by the witness with his deposition, and purporting to be a copy of the order or contract signed by appellant, was not the best evidence of the document appellee sought to prove. But the testimony having been taken by deposition, appellant had an opportunity to object to the admissibility of the attached copy before going to trial. By suffering appellee to enter upon the trial in reliance upon this evidence, and by withholding his specific objection that this evidence offered was secondary until the deposition was being read, appellant waived the objection on account of its inferior character, which would have been available if taken in due time. Sowell v. Bank of Brewton, 119 Ala. 92, 24 So. 585. None of the assignments of error based upon the admission of the copy can be sustained.

The agreement upon which appellant relied in defense showed on its face that it was a contract between appellant and Morehead concerning the sale by the latter for appellant of the 50 machines bought by appellant from appellee. Morehead had acted as agent for appellee in negotiating the sale to appellant; but appellee was not a party to the face of the contract between appellant and Morehead, nor was it made to appear that appellee had any interest in it, or was at all concerned about its performance. If it be assumed, agreeably to appellant's testimony, that he did not execute the contract or order upon which appellee relied, and hence that he had a right to rely upon...