Gilliland v. R.G. Dunn & Co.

• Decision Date: 28 February 1903
• Parties: GILLILAND ET AL. v. R. G. DUNN & CO.
• Court: Alabama Supreme Court

34 So. 25

136 Ala. 327

GILLILAND ET AL. v. R. G. DUNN & CO.

Supreme Court of Alabama

February 28, 1903

Appeal from Circuit Court, Chambers County; N. D. Denson, Judge.

Action on a note by R. G. Dunn & Co. against C. H. Gilliland and others. Judgment for plaintiff, and defendants appeal. Affirmed.

The court, at plaintiff's request, charged the jury that "authority to an agent to collect a debt does not give him authority to promise to do an unlawful thing."

Barnes & Duke, for appellants.

Graham & Steiner, for appellee.

SHARPE J.

One of the issues in this cause being whether the notes sued on had been altered after their execution, and one of defendants having testified there had been such alteration, the plaintiff had the right to have him state on cross-examination whether, on a former trial of the same cause, he gave like testimony. His omission on the first trial to assert a matter so vitally affecting his liability was a fact relevant to the credibility of this witness, since from his silence at that time there is a possible inference that up to the time of that trial at least there had been no such alteration. The inquiry addressed to the witness was "Did you, on the former trial, testify to any alteration in this note?" and, because there had been adduced no evidence of a former trial, it may be that the question involved a technical violation of the rule which forbids the framing of a question so as to assume the existence of facts of which there is no evidence. It is the danger of misleading the jury and the witness as to facts which might affect the case that this rule seeks to obviate. Here the fact assumed by the question, viz., that there had been a former trial of the case, was a mere incident of the main fact inquired about, and of itself was incapable of misleading either witness or jury to the prejudice of defendant.

Another issue tried was whether the notes were given in consideration of a promise made through plaintiff's agent Hare to refrain from prosecuting W. H. Gilliland criminally. If Hare's agency did not extend to making such promise in behalf of plaintiff, his lack of authority in that regard is a circumstance tending to corroborate his testimony in denial of such promise. For the purpose of such corroboration it was proper to allow Hare to testify he had no authority from plaintiff to make the promise. In Williamson v Tyson, 105 Ala. 644, 17 So. 336, it was held...