Georgia Cotton Co. v. Lee

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

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 &amp 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, 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 collateral did not tend to prove or disprove the issue being tried. What he thought and what he said to Doughtie did not tend to explain his direct testimony of the facts of the sale to defendant. It was not shown that before and at the time of the sale witness knew the actual weight or grades of cotton, and, in fact, he was uncertain whether the lot embraced 429 or 430 bales.

The question whether Doughtie had an account in witness' bank in 1912 for the purchase of some cotton was likewise immaterial.

The court properly allowed the witness Moneyham to tell that certain of the cotton was delivered for Lee from witness' warehouse, and that the weigher for the defendant "called back" or underweighed the cotton two or three pounds to the bale, and that witness thereafter reweighed two of the bales, and found that one bale gained four, and the other six pounds. This evidence tended to support one phase of the complaint. The conditions of the two bales of cotton had not changed; and it was not an experiment to illustrate a tendency of the evidence, but was the statement of a fact that at least tended to show that two bales of the cotton in question had been underweighed a total of ten pounds, and was also corroborative in effect.

The case of Ala. Great So. R.R. Co. v. Burgess, 114 Ala. 587, 22 So. 169, cited by appellee, does not apply to the question raised by this ruling on evidence.

No custom had been proven to prevail in the section where this sale was made, nor was it proven that the sale was made with reference to any custom, to underweigh cotton. Crandall-Pettee Co. v. Jebeles & Colias Confec. Co., 69 So. 964. Before the defendant could put the court in error for refusing to permit the questions to be answered, it should have informed the court what pertinent matter the answers would have elicited. B.R., L. & P. Co. v. Barrett, 179 Ala. 274, 60 So. 262.

We have examined the other assignments, and find that the trial court committed no reversible error in these rulings on the evidence, so presented for review.

While it is not permissible to ask a witness if another witness was not mistaken in his statement of certain language used ( Johnson v. State, 94 Ala. 40, 10 So. 667; Braham v. State, 143 Ala. 28, 38 So. 919; Newberry v Atkinson, ...