Hooper v. Whitaker

• Decision Date: 14 May 1901
• Citation: 30 So. 355,130 Ala. 324
• Parties: HOOPER v. WHITAKER.
• Court: Alabama Supreme Court

30 So. 355

130 Ala. 324

HOOPER v. WHITAKER.

Supreme Court of Alabama

May 14, 1901

Appeal from circuit court, Marshall county; J. A. Bilbro, Judge.

Action by S. C. Whitaker against A. R. Hooper on a note of $1,000. Judgment for plaintiff. Defendant appeals. Reversed.

The substance of the pleas setting up the principal defenses upon which issue was joined is sufficiently set forth in the opinion. On the trial of the case the defendant testified that the note sued on was his property; that it was executed by the defendant, and was given as the purchase price for his (the plaintiff's) half interest in the partnership business existing between him and the defendant; that this note was executed on September 21, 1899, and was made payable on January 1, 1900; that at the time the note was executed and delivered to him it had only one two cent United States documentary revenue stamp, which had been canceled by the defendant; that after its maturity plaintiff and his attorney, without the knowledge of the defendant, put 18 cents' worth of revenue stamps on said note, and canceled them. The plaintiff then offered to introduce said note in evidence. At the introduction of this note in evidence the defendant objected, upon the ground that it was not stamped with the required revenue stamp, and because the stamps were affixed to said note by a person unauthorized thereto. The court overruled this objection, allowed the note to be introduced in evidence, and to this ruling the defendant duly excepted. It is shown by the evidence that on the 21st of January, 1899, the plaintiff and the defendant entered into a partnership agreement for the purpose of conducting a retail liquor business; that under this agreement they engaged in said business; that while it was still pending, to wit, on September 21, 1899, the plaintiff offered to sell to the defendant his half interest in said business and its entire assets for $1,000. The defendant testified that, in negotiating the sale of his half interest, the plaintiff stated to the defendant that the firm had a stock of goods amounting to $1,800; that there were accounts belonging to and due the firm of $480; and that there was enough money in the bank belonging to the firm to pay all of the firm's debts. The defendant further testified that the plaintiff had had entire control and management of the business; that he (the defendant) was ignorant as to the truth or falsity of plaintiff's representations, but he believed them to be true, and, so believing, he agreed to purchase the plaintiff's half interest and executed the note sued on but that, after such purchase and execution of the note sued on, he (the defendant) invoiced the stock of goods, and found that the said stock, together with the furniture and fixtures, amounted to only $729, and that upon investigation he found that there was only $250 of accounts due the firm that indebtedness due by the firm was $841, and that there was only $370 of money in the bank belonging to said firm. The other facts in the case, relating to the representations and evidence of the plaintiff and defendant, respectively pertaining thereto, are sufficiently set forth in the opinion. The plaintiff testified that while the business of Whitaker & Co., which was the partnership existing between him and the defendant, continued, the plaintiff deposited money in his own name in the bank of Rison & Co., at Huntsville, Ala.; that the money deposited by him was his individual money, and was not the money of Whitaker & Co.

Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave to the jury the following written charges: (1) "The court charges the jury that if the money deposited by the plaintiff with Rison & Co. was the individual money of the plaintiff, and was not taken from the partnership business of S. C. Whitaker & Co., then defendant was not interested therein, and acquired no right therein, or on account thereof, against the plaintiff." (2) "If the jury are not satisfied to a reasonable certainty that the plaintiff made false and fraudulent representations to the defendant about the amount of the goods, accounts, and money in bank, then you will find for plaintiff." (3) "The defendant must show to your reasonable satisfaction that the statements, if any were made by the plaintiff at the time of the trade, were false, and that the statements were made as facts, and not as opinion or belief." (4) "The court charges the jury that whether they believe what Mr. Hooper says about the amount of indebtedness is a question for the jury, and if, from all the facts and circumstances in the case, they are not reasonably satisfied what he says about the amount is correct, they may find that he has not shown to a reasonable certainty what the indebtedness of the firm was." (5) "The court charges the jury that whether the representations set up by defendant were made-whether they were intended by Whitaker as the affirmation of a fact or the expression only of his opinion or belief-are questions solely for the jury to find from the evidence, and if they find that he made the representation complained of by defendant, but that it was as an opinion or belief, this would not authorize you to find for defendant, but on this matter you would find for plaintiff."

The defendant separately excepted to the giving of each of these charges, and also separately excepted to the court's refusal to give each of the following charges requested by him: (a) "The court charges the jury that a statement that there was belonging to the firm a stock of goods amounting to $1,800.00 was, if made, the statement of a fact and not the statement of an opinion." (b) "The court charges the jury that a statement that there were accounts belonging to the firm amounting to $450.00 was, if made, the statement of an opinion." (c) "The court charges the jury that a statement that there was enough money in the bank to pay the debts of the firm was, if made, the representation of a fact, and not the statement of an opinion." (d) "The court charges the jury that if Whitaker made a false statement to Hooper at the time of the trade as to the amount of goods owned by the firm, or of the amount of debts due to the firm, or of the amount of cash owned by the firm, then it would make no difference, even if Whitaker believed the statement; whether Whitaker was ignorant or had knowledge of the truth is wholly immaterial." (e) "The court charges the jury that if Whitaker told Hooper the firm of S. C. Whitaker & Co. owned a $1,800.00 stock of goods, and if there was only $729.00 of goods in the stock, and if Hooper was ignorant of the truth of this matter, and, in ignorance thereof, if Hooper acted on the belief that the statement was true and made the purchase, then the defendant would be entitled to have the duebill credited with one-half the difference between $1,800.00 and $729.00." (f) "The court charges the jury that if one witness testifies that certain things were said in a conversation, and if another witness testifies that he does not remember what was said in the conversation, but denies that the things stated by the first witness were said, and if the witnesses are equally interested, equally credible, and had equal means of knowing the truth, then greater weight is to be given to the testimony of the witness who testifies affirmatively than to that of the one who testifies negatively." (g) "The court charges the jury that if Whitaker told Hooper that there was belonging to the firm a stock of goods amounting to $1,800.00, and if there was in...