Goldsmith v. McCafferty

• Decision Date: 21 December 1893
• Citation: 101 Ala. 663,15 So. 244
• Parties: GOLDSMITH ET AL. v. MCCAFFERTY.
• Court: Alabama Supreme Court

15 So. 244

101 Ala. 663

GOLDSMITH ET AL. v. MCCAFFERTY.

Supreme Court of Alabama

December 21, 1893

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Action by Goldsmith & Davis against H. J. McCafferty. From a judgment in their favor, plaintiffs appeal. Reversed.

This was an action of assumpsit on a promissory note. The defendant pleaded the general issue, want of consideration and failure of consideration. Upon the trial of the cause, as is shown by the bill of exceptions, the plaintiffs introduced the note sued on, which was in words and figures as follows "$129.80. Birmingham, Ala., June 1st, 1890. Four months after date I promise to pay to the order of Goldsmith & Davis one hundred twenty-nine and 80/100 dollars, value received at Birmingham, Ala. [Signed] H. J. McCafferty." They also introduced a statement of the bill of the defendant with the plaintiffs, in words and figures as follows: "H Judson McCafferty, Birmingham, Ala., bought of Goldsmith &amp Davis, terms four months' note, 1 bale Havana tobacco, 118 lbs., at $1.10,-$129.80; one case leaf tobacco, $105.00, 350 lbs., 30 cents,-$105.00." Here the plaintiff rested. The bill of exceptions then recites: "The defendant, McCafferty, was then introduced, who testified that the tobacco was unsound, and that the same had been resweated, and that it was not worth exceeding 20 cents per pound; that plaintiffs had guarantied the soundness of said tobacco at the time the sale was made. The defendant further testified that at the time he bought the tobacco it was represented to be natural-sweat leaf, but in fact defendant found for the first time, after keeping it about six weeks, that the tobacco was resweated, and he then wrote to the plaintiffs, and they sent the written guaranty that it was not resweated. The longer defendant kept the tobacco, the worse it got. Goldsmith (one of the plaintiffs) called to see defendant in July or August, 1891, and assured him that the tobacco was not resweated. On re-examination defendant testified that he did not know that the tobacco was resweated until after the notes were given. On cross-examination defendant testified that he received from plaintiffs letters dated May 12, May 13, June 7, August 4, and September 13, 1890, and he wrote the following letters: July 21st, July 29th, October 13th. And he further testified that he had used all of the tobacco purchased from plaintiffs in his business. He also introduced one Pfeister, who testified that he was in the cigar manufacturing business, well acquainted with the quality of tobacco, and that said tobacco he had examined at the request of defendant, and that the same was unsound, had been resweated, and that the same was not worth exceeding 20 cents per pound. The defendant introduced another witness, who testified to the same effect." The plaintiffs then introduced in rebuttal the letters which had passed between them and the defendant, and which were as follows:

"New York, May 12th, 1890. Mr. H. Judson McCafferty, Birmingham Ala.-Dear Sir: Your order through our Mr. Goldsmith to hand. Tobacco will be shipped to-morrow. Yours, truly, Goldsmith & Davis."

"New York, May 13th, 1890. Mr. H. Judson McCafferty, Birmingham, Ala.-Dear Sir: We have this day shipped the leaf via Savannah Str. Inclosed you will please find bill. Trusting to receive your future orders, we are, yours, truly, Goldsmith & Davis."

"New York, June 7, 1890. Mr. H. J. McCafferty-Dear Sir: Your letter we have received, and in reply wish to say that we are surprised that the case of wrappers our Mr. Goldsmith sold you is not satisfactory. Mr. Goldsmith sold quite a number of them, and we had no complaint. But we wish to state to you that, if the case is not satisfactory, you can return the same. We don't want you to keep any stock if not satisfactory, but if you would try the same a little more we have no doubt it would turn out satisfactory. Hoping to receive your future orders, we remain, yours, truly, Goldsmith & Davis."

"Birmingham, Ala., July 21st, 1890. Goldsmith & Davis, New York-Gentlemen: Sirs, I was unable to get to case leaf in question, to give it a fair trial on mold, until last week, as I was short on a cigar that I make by hand. The leaf works quite well on mold, but I make but few mold cigars, and the case would last me a long time for that kind of work. Although I will keep it, if you will give me longer time on it. Let me hear from you, and oblige, yours, truly, H. J. McCafferty."

"Birmingham, Ala., July 29th, 1890. Goldsmith & Davis, New York-Gentlemen: Sirs, inclosed you will find notes for the amount of bill bought of your Mr. Goldsmith. I have dated note for Havana from June first, as that was the arrangement I made with Mr. G. Hoping this will be satisfactory, respectfully, H. J. McCafferty."

"New York, Aug. 4th, 1890. H. J. McCafferty-Dear Sir: Your letter, with inclosed two notes for $234.80, received, and have given you credit for the same, and inclosed please [find] receipt, and accept thanks. Yours, truly, Goldsmith & Davis."

"New York, Sept. 13th, 1890. Mr. H. J. McCafferty, Birmingham, Ala.-Dear Sir: In reference to the leaf we shipped to you on May 12, 1890, will say that our Mr. Goldsmith has arrived home, and will say he finds the tobacco sound, and is not resweated, and we can therefore not exchange the same, as you have the tobacco in your possession now over four months. Our notes must be paid when due. Yours, truly, Goldsmith & Davis."

"Birmingham, Ala., Oct. 2nd, 1890. Goldsmith & Davis, New York City-Gentlemen: Your Mr. Goldsmith gave me his word of honor that his firm would deal fair with me, and I am somewhat surprised that my note has been protested. I am willing to pay what the leaf is worth, and have been advised that you cannot collect any more than that after your written guaranty that it was not resweated, and would not spoil. I have handled tobacco for twenty-odd years, and know something about leaf; and I say this goods is resweated, and not worth the price asked. If you think best to sue, go ahead. I will stand you a trial. Respectfully, H. J. McCafferty."

"Birmingham Ala., Oct. 13th, 1890. Goldsmith & Davis, New York-Gentlemen: Yours of the 6th at hand, and in reply will say your sale of tobacco to me was resweated...