Kendrick v. Cunningham

• Court: Alabama Court of Appeals
• Writing for the Court: THOMAS, J.
• Citation: Kendrick v. Cunningham, 9 Ala.App. 398, 63 So. 797 (Ala. App. 1913)
• Decision Date: 25 November 1913
• Parties: KENDRICK v. CUNNINGHAM.

63 So. 797

9 Ala.App. 398

KENDRICK v. CUNNINGHAM.

Court of Appeals of Alabama

November 25, 1913

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Assumpsit by W.J. Kendrick against E.O. Cunningham. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

The court gave at the request of defendant the following charge "(4) Unless the jury are reasonably satisfied from the evidence in this case that goods, wares, and merchandise were furnished defendant by plaintiff at the request of defendant you cannot find a verdict against defendant for goods and merchandise as claimed in the fourth count of the complaint."

Davis &amp Fite, of Jasper, for appellant.

Ray &amp Cooner, of Jasper, for appellee.

THOMAS J.

The appellant, who was plaintiff in the court below, brought suit, declaring on a promissory note, on an account, on account stated, and for goods, wares, and merchandise; all the four counts relating to the same cause of action. The errors here assigned by him relate only to the action of the trial court in excluding or rejecting certain evidence offered by him and in giving certain written charges at the request of the defendant.

The appellant's contention as to whom he granted the credit (whether exclusively or only collaterally to the defendant), forming the consideration of the obligations sued on, is not very clear in some material particulars. Putting together, however, his disconnected statements as to this matter found in the bill of exceptions, we are probably safe in stating this much: He was a merchant at Kansas, Ala., at the time of the transactions between him and the defendant and the defendant was in charge of and working a coal mine near said place under the name of the Douglass Coal Company, a corporation, of which he was superintendent and in whose name there were issued checks and orders for merchandise, we suppose, in payment of the labor at the mines. Prior to the particular transaction here involved, the plaintiff had been honoring in merchandise these checks and orders of the coal company that came to his store; but he says he had had some trouble in getting his money from the company and declined to fill any more of them until he had an agreement with the defendant that he (the latter) would be individually responsible for "the merchandise." After this agreement, further checks and orders of the company were honored in merchandise by the plaintiff to the extent of $229, when they were surrendered to the defendant, and he, not having the present means with which to pay, gave his individual promissory note therefor, which is declared on in the first count of the complaint; the other counts being, as before stated, the common counts for these same goods testified to have been sold and delivered to another on the order and checks of the coal company at defendant's request. The defendant denied making any agreement with or promise to the plaintiff to be individually responsible for the merchandise that the latter might furnish on the coal company's checks or orders, and denied the execution of the note sued on and the surrendering to him of the company's checks and orders as claimed by the plaintiff, asserting, in effect, that the note sued on was a forgery. There was verdict and judgment for defendant.

During the course of his examination, the plaintiff, as a witness for himself, was asked by his counsel this question "What agreement did you make with him [[the defendant]?" meaning thereby to inquire, we infer from the connection, what agreement the plaintiff made with the defendant with respect to honoring in merchandise the checks and orders of the coal company. The court overruled the objection of defendant's counsel to this question and permitted the witness to answer, whereupon he said: "I agreed if he [defendant] would be individually responsible I would let him have the merchandise." The court then, on motion of defendant's counsel, excluded this answer; the grounds of the motion being that the testimony was irrelevant, incompetent, and immaterial and showed a promise on the part of the defendant to answer for the debt, default, or miscarriage of another and was not in writing. This agreement (if such was made) was certainly material and relevant to the issues involved, if for no other reason, in that it formed the support for the second, third, and fourth counts of the complaint, without which neither of them could be maintained because of want of a request from defendant to plaintiff to furnish the merchandise...