McLarty v. Wright
| Decision Date | 29 October 1975 |
| Citation | 56 Ala.App. 346,321 So.2d 687 |
| Parties | R. R. McLARTY v. Armon WRIGHT. Civ. 573. |
| Court | Alabama Court of Civil Appeals |
Beck & Beck, Fort Payne, for appellant.
John C. Wear, Scruggs, Rains & Wilson, Fort Payne, for appellee.
Plaintiff commenced this action on August 29, 1973 by filing a complaint in the Circuit Court of DeKalb County alleging tha defendant had breached an agreement whereby the two parties were to establish a new textile manufacturing plant together. According to plaintiff, the terms of the agreement provided that he and defendant were to put up an initial capital investment of $4,000 each, and plaintiff was to manage and operate the firm. The agreement allegedly contemplated that the business would be incorporated as the 'DeKalb Textile Mill, Inc.,' and each party would receive fifty percent of the stock.
Plaintiff further alleged that, after the business had become a going concern, defendant breached the agreement by refusing to incorporate and by dismissing plaintiff from his duties at the plant and ordering him off the premises.
Defendant denied the allegations of the complaint. Trial by jury was held on December 11, 1974.
The major factual disputes were whether the venture was making a profit or incurring losses at the time of plaintiff's dismissal and whether the defendant was acting personally or as agent for W. B. Davis Hosiery Sales, Inc. when he entered into the agreement with plaintiff. The jury found all of the issues for plaintiff and returned a verdict that defendant was personally liable in the amount of $8,500. Defendant appeals.
Defendant's first assignment of error is that his objection to plaintiff's evidence that the venture was profitable was improperly overruled. Defendant contends that profitability is not a material issue in this case because plaintiff did not plead lost profits as a matter of special damages in the complaint.
It does not appear that the testimony was offered for the purpose of supporting a claim for lost profits. There is no claim for such profits in the pleadings, and there was no evidence offered whereby a jury might be expected to compute the amount of lost profits. It is, on the other hand, clear that plaintiff's claim for breach of contract included allegations that his dismissal from the management of the DeKalb Textile business was unjustified. Whether or not the business was earning money under plaintiff's management is relevant and material to that allegation. If evidence objected to on specific grounds is admissible on any grounds, the trial court will not be put in error for overruling the objection, Martin v. Hill, 42 Ala. 275.
Defendant next cites error in the trial court's denial of his motions for directed verdict and for judgment notwithstanding the verdict. Both of these motions test the sufficiency of the evidence in the same way, see Committee Comment to ARCP, Rule 50. Neither should be granted if there is any conflict in the evidence for the jury to resolve, and the existence of such a conflict is to be determined by applying the scintilla rule. Defendant based his motions on what he claimed was an absence of evidence that he, rather than W. B. Davis Hosiery Sales, Inc., was personally obligated by the terms of the agreement to incorporate.
The only evidence that defendant had personally entered into the agreement was plaintiff's testimony on direct examination. On cross-examination plaintiff put forth the seemingly contradictory testimony that W. B. Davis Hosiery Sales had put up the initial $4,000, paid in additional operating money, and appeared on the proposed certificate of incorporation as a fifty percent shareholder. This incongruity in testimony was not explained or clarified.
Unexplained contradictions in a witness' testimony do not cancel out the matter contradicted or justify its exclusion, but go instead to the weight of the testimony, Bohanan v. Dodd, 7 Ala.App. 220, 60 So. 955. Of course, the net effect of inconsistent testimony may be a diminution of the witness' overall credibility, but this is to be determined by the jury. The scintilla of evidence offered by plaintiff was not wiped out by his later apparent contradiction of it, and...
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