Georgia Cotton Co. v. Lee, 4 Div. 625

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, J.
• Citation: 72 So. 158,196 Ala. 599
• Docket Number: 4 Div. 625
• Decision Date: 18 May 1916
• Parties: GEORGIA COTTON CO. v. LEE.

72 So. 158

196 Ala. 599

GEORGIA COTTON CO.
v.
LEE.

4 Div. 625

Supreme Court of Alabama

May 18, 1916

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

Assumpsit by R.M. Lee against the Georgia Cotton Company. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under section 6, Act April 18, 1911, p. 449. Affirmed.

The assignments of error relative to evidence sufficiently appear. After the trial was entered upon plaintiff offered an amendment to the complaint, which defendant moved be stricken from the file, which motion was overruled. The following charge was refused to defendant:

(13) The court charges the jury that, before plaintiff can recover on the third count of the complaint, plaintiff must show by the evidence in this case that in grading said cotton the agents, servants, or employés of defendant who had charge of the grading of the cotton for the defendant undergraded it, and graded said cotton below the grade that it actually showed, and that at the time plaintiff protested and objected to said grades, stating that they were incorrect that they were unfair, and far below the actual grades of said cotton

The following is charge 1 given for plaintiff:

The court charges the jury that, if they believe from the evidence that plaintiff sold the cotton to defendant, and further believed from the evidence that the grades were agreed upon and further believed from the evidence that defendant did not pay plaintiff the price agreed upon, based upon the grades agreed upon, then they must find for plaintiff for the difference between the price of cotton agreed upon, based upon the grades agreed upon, and the grades shown to have been the grades upon which the payment was made

E.H. Hill and E.S. Thigpen, both of Dothan, for appellant.

Lee & Tompkins and Espy & Farmer, all of Dothan, for appellee.

THOMAS, J.

The plaintiff sought recovery on a sale of 430 bales of cotton for its underweight and its billing at a lower grade than its true grade. These issues were presented by appropriate counts, to which the general issue was pleaded by the defendant.

Assignments of error numbered 1 to 6, inclusive, challenge the right of witness Foy, who acted for plaintiff in making the sale, to give the conversations leading up to the sale and its consummation by delivery. Foy had testified that he had personal knowledge of the transaction, and was acting for plaintiff; that he held the cotton receipts, and sold to defendant company. It was competent for the witness to testify to the conversations with defendant and its agent in making the sale and delivery of the cotton and in receiving payment of the purchase price therefor. The testimony tended to show that the cotton was bought by the defendant, and not by Doughtie, and that Doughtie was acting as defendant's agent in making the purchase.

The draft on defendant for the purchase price was collateral to the issues--of underweight and undergrading--and its production was not necessary. Shepherd v. Sartain, 185 Ala. 439, [72 So. 160] Phillips v. Pippin, 4 Ala.App. 426, 58 So. 111; Fowler et al. v. Pritchard et al., 148 Ala. 261, 41 So. 667; Griffin v. State, 129 Ala. 93, 29 So. 783; First Nat. Bank v. Lippman, 129 Ala. 617, 30 So. 19; Allen v. State, 79 Ala. 34; Foxworth v. Brown, 120 Ala. 59, 24 So. 1; East v. Pace, 57 Ala. 524; Duffie v. Phillips, 31 Ala. 571; 1 Greenl.Ev., § 89.

The right of defendant, on the cross-examination of Foy, to ask the question, "In discussing the matter with Mr. Doughtie, after the sale was over, didn't you tell him that you had gotten $1,800 more for that cotton than you thought you would?" was denied by the court, which ruling is challenged in the seventh and fourteenth assignments of error. The testimony was not relevant. What Foy thought about the aggregate purchase price of the lot of 429 or 430 bales of cotton held by him as...