Jordan v. Austin

• Decision Date: 17 June 1909
• Citation: 161 Ala. 585,50 So. 70
• Parties: JORDAN v. AUSTIN.
• Court: Alabama Supreme Court

50 So. 70

161 Ala. 585

JORDAN v. AUSTIN.

Supreme Court of Alabama

June 17, 1909

Appeal from Circuit Court, Cherokee County; W. W. Haralson, Judge.

Action by S. B. Austin against H. E. Jordan. Judgment for plaintiff and defendant appeals. Reversed and remanded.

The issues presented by the pleadings were that the note was given for the purchase price of the mare, with the guaranty that she was sound and would work well anywhere, while in fact she was not sound, and would not work to the plow wagon, or buggy, and was unsafe. Rescission was also set up. In testifying, the defendant stated that Faulkenberry and certain other persons were present when he started to work the mare, and that his wife was present and heard the guaranty given by plaintiff. The defendant denied having received any letters from plaintiff in reference to the matter. In rebuttal thereto, plaintiff testified that he had written certain letters to defendant, stamped them, and mailed them, addressed to defendant at his post office address, and with plaintiff's return card on corner of the envelope. He also testified that he had registered one letter to defendant, and had received his returned registered card signed by defendant. The court permitted him to testify as to the contents of this registered letter. In his argument, the solicitor for the plaintiff said "Gentlemen of the jury, why did not the defendant have Faulkenberry and the other witnesses here who worked for him and saw him try to work the mare? Gentlemen of the jury, why did the defendant not have his wife here as witness, who he said was present at the time of the contract? Not one word do we hear from Hiram Jordan's wife." Objection was interposed to these statements, and exceptions reserved to the court's declining to rule them out. The following charges were refused to the defendant: "(1) The court charges the jury if Austin guaranteed the mare to Jordan to be sound, and she was not sound, this was a fraud on the part of Austin. (2) The court charges the jury, if the jury believe from the evidence to a reasonable certainty that Austin is indebted to Jordan for board and feed of his horses, the jury should find a verdict in favor of Jordan for the sum due, even if they believe that plaintiff is not entitled to recover anything. (3) The court charges the jury plaintiff had the same right to procure the testimony of Hiram Jordan's wife that defendant had, and the statement of plaintiff's attorney that 'not one word do we hear from Hiram Jordan's wife' was improper, and we should not consider it for any purpose. (4) The court charges the jury, the fact, if it be a fact, that any witnesses do not agree in their testimony as to immaterial facts, will not authorize the jury to disregard their testimony on that account. (5) The court charges the jury that if plaintiff lived at Clinton, Ga., and it was nearly 50 miles from where defendant lived, and it was impracticable for defendant to carry the horse to Austin, the law did not require him to carry it to Austin to rescind."

G. L Burnett, for appellant.

R. C. Hunt and L. H. Lee, for appellee.

ANDERSON J.

The defendant did not testify that Faulkenberry and the other man saw him try to work the mare when she refused. He merely stated that they were working with him at the time. The trial court should have sustained the objection to so much of plaintiff's counsel's argument as stated, "Why did not the defendant have Faulkenberry and the other witnesses here who worked for him and saw him try to work the mare?" Morris Hotel Co. v. Henley, 145 Ala. 52, 40 So. 52; Cross v. State, 68 Ala. 476; E. T. V. & G. R. R. v. Bayliss, 75 Ala. 466. While, as a rule, there may be an inference unfavorable to the withholding of evidence, this rule does not obtain where the evidence is equally as accessible to both parties. Ethridge v. State, 124 Ala. 106, 27 So. 320; Mann v. State, 134 Ala. 20, 32 So. 704; Bates v. Morris, 101 Ala. 282, 13...