Foster v. Bush

• Decision Date: 30 November 1894
• Parties: FOSTER v. BUSH ET AL.
• Court: Alabama Supreme Court

16 So. 625

104 Ala. 662

FOSTER v. BUSH ET AL.

Supreme Court of Alabama

November 30, 1894

Appeal from circuit court, Tuscaloosa county; S. H. Spratt, Judge.

Action by J. C. Bush & Co. against Guy Foster on a note. There was a judgment for plaintiffs, and defendant appeals. Reversed.

The defendant pleaded the general issue, want of consideration failure of consideration, payment, usury, and set-off. Upon the trial of the case, as is shown by the bill of exceptions the plaintiffs introduced in evidence the note which is the basis of the suit. This note was " negotiable and payable at the First National Bank of Mobile, Ala.," and contained a waiver of exemption and a stipulation for the payment of attorney's fees, and was signed by the defendant, Guy Foster, and his wife, Annie E. Foster. The defendant, Guy Foster, testified in his own behalf that in December, 1890, and in January and February, 1891, he shipped to plaintiffs, as commission merchants and cotton factors 325 bales of cotton; that prior to this time, and up to June 1891, plaintiffs had advanced him money in a large sum, and at the end of the season, after disposing of the cotton so shipped, and giving the defendant credit for the same, the plaintiffs claimed a balance of $834.71, and demanded of the defendant his note for such amount, and that in compliance with the demand the defendant executed to plaintiffs the note sued on, and that after its execution he shipped to plaintiffs two bales of cotton, which were sold for $62, for which amount the said note is entitled to be credited. The defendant further testified that after this he learned that a large portion of the 325 bales of cotton, which he had shipped to the plaintiffs, had been badly damaged, after coming into the possession of Bush & Co., by their negligence, and had been improperly and badly handled by them, and that by reason of such negligence he had sustained loss in the weights of the cotton, and in the price; the cotton having been damaged by mud and water, and having been exposed to the weather. The defendant further testified that the weights of the cotton as given by him were correct, and that said cotton lost greatly by Bush & Co.'s reported weights, a number of bales having lost over 100 pounds to a bale, and another as much as 190 pounds; that estimating the loss in each bale between the defendant's and plaintiffs' weights, and valuing the loss at the same rate per pound as the bale in which said loss occurred was reported to have been sold for by plaintiffs, the sum lost to him would amount to about $300; that he suffered loss of about $200 by reason of the failure of plaintiffs to sell 81 bales of cotton he ordered them to sell about the latter part of February, 1891, it being admitted that some of these 81 bales were not sold until June following, and that the price of cotton gradually declined from the last of February until June; and that he sustained loss by being charged with pickery bills, when it was not necessary to send any of the cotton to the pickery. On cross-examination the defendant testified that he gave the note sued on with the full knowledge of the failure by the plaintiffs to sell the cotton according to instructions, and that he also knew of the difference between the weights of the cotton as weighed by himself and the weights of Bush & Co., and that he never made any complaint to Bush & Co. about these matters. The defendant introduced other evidence tending to show that none of the cotton was water-packed, but that some of the cotton shipped to Bush & Co., while in their possession, was permitted to lie from one to six weeks on the wharf at Mobile, in the mud and water, unprotected from the rain or weather, and that during that time storage and progressive storage was being charged by the plaintiffs on the cotton. The defendant then asked leave to file the following additional plea: "Comes the defendant, and for further answer to said complaint says that the note upon which plaintiffs sued to recover is void because the same was obtained from defendant by false and fraudulent representations and statements of plaintiffs; that these statements and representations were material, and such that the defendant had a right to rely on, and did rely on, and without which this defendant would not have signed said note." The plaintiffs objected to the filing of this plea at this stage of the case. The court sustained the objection, and the defendant duly excepted. During the cross-examination of the defendant he was asked by plaintiffs' counsel, "Was not the cotton crop of 1890 a very poor grade of cotton?" To this question the defendant objected, because the same was immaterial and irrelevant, and duly excepted to the court's overruling such objection. The witness answered that he did not recollect whether it was a poor grade or not, but that it was very poor. The defendant then moved the court to exclude this answer from the evidence, for the reason that it was immaterial and irrelevant to the issue involved; but the court overruled the motion, and the defendant duly excepted. J. C. Bush, one of the plaintiffs, upon his examination as a witness was asked, "How do you weigh cotton when you go to sell?" The defendant objected to this question because the same was immaterial and irrelevant. The court overruled the objection, and the defendant duly excepted. The witness answered: "The cotton is arranged in rows under the shed. The sampler goes along and samples it. The weighmasters come along right after him. There are two weighmasters,-the buyer's and mine. Each one takes down the weights in their books, and then...