Homewood Dairy Products Co. v. Robinson

• Decision Date: 12 October 1950
• Docket Number: 3 Div. 575
• Citation: 22 A.L.R.2d 1059,254 Ala. 197,48 So.2d 28
• Parties: , 22 A.L.R.2d 1059 HOMEWOOD DAIRY PRODUCTS CO., Inc. v. ROBINSON.
• Court: Alabama Supreme Court

Page 28

48 So.2d 28

254 Ala. 197, 22 A.L.R.2d 1059

HOMEWOOD DAIRY PRODUCTS CO., Inc. v. ROBINSON.

3 Div. 575.

Supreme Court of Alabama.

Oct. 12, 1950.

Rives & Gidbold, of Montgomery and Rosenthal & Rosenthal of Birmingham, for appellant.

J. R. Bell, of Hayneville, and Watkins C. Johnston, of Montgomery, for appellee.

The following charge was refused to defendant:

A. If you find that there existed a dispute between plaintiff and defendant as to what amount was due to plaintiff by defendant for the sale of milk to the defendant by plaintiff, and the defendant gave to the plaintiff a check marked on its face with words and figures indicating that it was for milk through a particular date, such date being before the check was given, and plaintiff cashed or deposited said check, this is a satisfaction in full of the account between plaintiff and defendant for sale of milk through the particular date indicated on said check.

FOSTER, Justice.

This is a suit in assumpsit, in which appellee sued appellant and recovered a judgment on a claim growing out of a contract for the sale of milk.

Appellee was a producer of milk in two locations in Lawndes County. Appellant processed and distributed the milk products. They operated under regulations of the State Milk Control Board. That board fixed a minimum price for such transactions but no maximum. The parties could agree on a figure in excess of the minimum. They did that in this instance. There was provision for making the contract so that under certain conditions when a surplus was produced, appellant could claim a rate less than had been argeed on for the amount of the surplus. The fact and amount of the surplus were as provided in the rules made by the board.

In February 1946 two officers of appellant, doing business in Jefferson County as well as Lowndes County, one the president George Burrell, and the vice president Sam Burrell, with one Blackmon also representing appellant, went to see appellee with a view of buying the output of his two dairies. The transaction was with the two officers of appellant acting jointly and was had at Robinson's Switch. The only difference material to the issues as to the nature of the agreement then made and their conversations is that appellee contends and testified that there was no limit fixed as to the duration of the contract. He is corroborated by Blackmon as to that. Sam Burrell testified it was to continue one year from April 1, 1946 to April 1, 1947. They agree that by such contract, appellant was to take all the milk output of both dairies delivered at one of them at a base figure, with no surplus, and that appellant was to pay appellee twenty-five cents per hundred pounds for hauling the milk produced at one dairy to the other for delivery there.

Appellee testified that the agreement was not finally concluded but he was to consider and let them know his decision; that later he saw George Burrell, president of the company, and had an agreement about cans and he told George he accepted the terms of the contract.

Objection was made to the testimony of appellee and the questions to him about what occurred separately on the two occasions because George Burrell was then dead, applying the dead man's statute. Section 433, Title 7, Code.

In response to that objection appellee's counsel took the position before the trial judge that George's estate is not interested, it being a suit against the corporation. It was not insisted that there was no evidence that George was then dead, as the evidence subsequently showed. But we think he should have made mention of such claim when he was responding to the objection which expressly stated that he was dead. So that appellee should not now have the benefit of such contention.

In the matter here material several states have interpreted their statutes, respectively, which prohibit testimony by an interested witness as to a transaction with or statement by the deceased person under circumstances there stated. The concensus of opinion is that the transaction with or statement by a deceased person is not such within such statute when it was with him and one or more others associated with the deceased in the transaction, for such other one still living may give his version of the transaction, and, therefore, the reason for the exclusion does not exist. Johnson v. Townsend, 117 N.C. 338, 23 S.E. 271; Goss v. Austin, 11 Allen, Mass., 525; Fulkerson v. Thornton, 68 Mo. 468; Peacock v. Stott, 90 N.C. 518; Kale v. Elliott, 18 Hun., N.Y. 198; Palm Beach Estates v. Croker, 106 Fla. 617, 143 So. 792; McConnon & Co. v. Kuhlmann, 220 Mo.App. 821, 278 S.W. 822; Paddock v. Potter, 67 Vt. 360, 31 A. 784.

While this Court does not seem to have had the question before it, we think it is a fair construction of our statute, and does not conflict with our holding, that the presence of a disinterested party hearing the transaction does not make the evidence legal if otherwise within the purview of the statute. Southern Natural Gas Co. v. Davidson, 225 Ala. 171(4), 142 So. 63; Frank v. Thompson, 105 Ala. 211, 16 So. 634.

So that there was no error in respect to the ruling insofar as the question related to the transaction with George and Sam Burrell, because Sam was alive and testified on the trial giving their version of what occurred.

But such objection was also made to the evidence of appellee to the transaction between George Burrell and appellee later when appellee advised him of his acceptance of the contract in which George agreed to furnish the cans. Of course the fact that a representative of George's estate is not sued and that his estate may or may not have a pecuniary interest because he was a stockholder in the company, see, Montgomery & Wetumpka Plank-Road Co. v. Webb, 27 Ala. 618, would not affect the disability of appellee to testify as to the transaction with him since George was then acting as the president and agent of the company, which is sued and has a pecuniary interest in the suit. First National Bank of Guntersville v. Bain, 237 Ala. 580, 188 So. 64; National Union Fire Ins. Co. v. Weatherwax, 247 Ala. 143, 22 So.2d 733; Benson & Co. v. Foreman, 241 Ala. 193, 1 So.2d 898; Alford v. Darnell, 252 Ala. 565, 42 So.2d 260; Tabler v. Sheffield Land, Iron & Coal Co., 87 Ala. 305, 6 So. 196.

But there is no controversy in respect to that feature of the transaction. No one claims that the company was not to furnish the cans and did so: the suit involves no controversy as to them. No one contends that appellee did not accept the terms of the contract as discussed when they were all present. So that such evidence of appellee was not prejudicial to appellant. We do not think there was reversible error in respect to that contention.

The basis of appellee's claim is twofold. One is that appellant paid him for the May 1948 milk partly on a surplus price basis, which makes a difference for that month's product of $797.44 (Record p. 34). The other claim is that under the contract the haulage was to be paid for throughout the contract including the period from April 1, 1947 to October 15, 1948; but under appellant's version of their relations it was not due to pay appellee for hauling after April 1, 1947, when, as it contends, the first contract ended and another was made over the telephone when no haulage was to be paid for. Appellee continued to deliver the milk until October 15, 1948, when he terminated the contract. The amount claimed for haulage was $917.37.

Appellant also contends that some of the checks given appellee, after the date of his claims respectively showed that they constitute payment in full as there stated and constituted an accord and satisfaction. This contention was made by requested written charges which were refused by the court and assigned as error.

There was no controversy as to the correctness of the amounts which make up the two aspects of the claim, if there is a liability as to one or both respectively.

As we have indicated, there is a serious conflict in the evidence as to the terms of the contract discussed at Robinson's Switch, when George and Sam Burrell and Blackmon representing appellant were present with appellee. Sam Burrell testified that the contract was for one year only. Both aspects of appellee's claim arose after the expiration of that year. Appellee claims that no time limit was agreed on and Blackmon corroborated appellee. With no time limit either party could terminate it on sufficient notice. In June 1947, after the expiration of the first year, there was a telephone conversation between Sam Burrell and appellee. They differ as to its nature and effect. It was for the jury to settle that conflict. If the contract was without limit as to time and there was no change in its terms, appellant would owe appellee the full amount of his claim on both aspects subject to accord and satisfaction. Having found for appellee the jury resolved that conflict in his favor. There was evidence which substantially supported that finding. It is not for us to weigh its effect, unless the great preponderance of the evidence was against the finding. We do not think that such is its effect.

We are now ready to consider the claim of accord and satisfaction. First as to the May 1948 surplus claim. Throughout their dealing that was the only month in which appellant claimed a surplus. The jury by its verdict found that the contract was without surplus and not modified so as to include surplus in that month. Therefore the jury found that the full amount claimed by appellee on that account was just as well as unpaid. There were three checks in evidence which appellant claims in brief had the effect of discharging such liability. One was No. 492, dated September 25, 1948, for $2,235.54 with a memorandum on one said: 'For milk through 9-15-48 in full a/c to date.' One was check No. 520, dated October 5, 1948, for $2,188.26 with a side memorandum: 'Milk in full...