Miller v. Cannon

• Court: Alabama Supreme Court
• Writing for the Court: STONE, C.J.
• Citation: Miller v. Cannon, 84 Ala. 59, 4 So. 204 (Ala. 1888)
• Decision Date: 17 May 1888
• Parties: MILLER v. CANNON ET AL.

4 So. 204

84 Ala. 59

MILLER v. CANNON ET AL.

Supreme Court of Alabama

May 17, 1888

Appeal from circuit court, Wilcox county; JOHN MOORE, Judge.

Detinue was brought by J. N. Miller, as administrator, against G. R Cannon & Co., for a mule which plaintiff claimed was sold by his intestate conditionally to one Edwards, who mortgaged the mule to G. R. Cannon & Co. The defendants took possession of the mule, under the power contained in the mortgage, for Edwards' debt, and the plaintiff brought suit to recover. Judgment for defendants, and plaintiff appeals.

J N. Miller, for appellant.

R Gaillard, for appellees.

STONE C.J.

There appears to be some misapprehension or confusion in the interpretation of our various rulings on section 3057, Code 1876; section 2763, Code 1886. Possibly, some of our unguarded expressions have contributed to this confusion. We propose in this opinion to attempt an explanation and reconciliation of the various rulings, and to declare what we conceive to be the true interpretation of the statute. The case of Cousins v. Jackson, 52 Ala. 262, was as follows: B. T. Cousins recovered a judgment or decree against Morris Cousins, as administrator. Jackson was one of the sureties on his administration bond. Morris Cousins died, and McCain was appointed his administrator. B T. Cousins sued Jackson, surety of Morris Cousins, to recover the amount of his said decree. On the trial, McCain, the administrator, testified to a conversation he claimed to have had with B. T. Cousins after the death of Morris, tending to prove that B. T. admitted the decree had been settled. B. T Cousins was examined in rebuttal. He testified, first, contradicting to some extent, and explaining the alleged conversation with McCain. He further testified that he had two interviews with McCain, and that the alleged conversation between them took place at the second of the interviews. He was asked by his counsel "what reply he made to these statements of McCain, for the purpose of contradicting McCain as to what he said was plaintiff's reply." He was further asked "what settlement had ever taken place between him and Morris Cousins since the rendition of said decree, in which said decree was embraced." This last question does not appear to have been objected to. The witness answered there had been none. He was then asked "if any settlement had been had between him and Morris Cousins since the rendition of said decree, embracing other matters than said decree." This question was objected to, and the witness was not allowed to answer it. It is manifest that the witness ought to have been allowed to answer the question first above stated. It was clearly legal, for it related to a conversation, not with the deceased, but with his administrator. His testimony, as asked for, did not relate to a transaction with the deceased as a transaction, but to a conversation he had had with a living witness, proved as an admission against him by a living witness. He was asked to speak of the conversation, and not of the transaction, except to the extent the alleged conversation related to it. BRICKELL, C.J., in his opinion, considered the questions together, and treated them as simply explaining and rebutting the alleged admission proved against plaintiff. The following are extracts from the opinion: "It [the testimony offered] had a tendency to explain the admission proved to have been made by appellant; to show that it referred to settlements in which the decree was not included. Or it may have tended to show that if the appellant made the admission, as understood and repeated by the witness, the admission was not itself deliberately made, and was unfounded in fact. It also tended to contradict the witness proving the admission, by showing the admission was untrue in point of fact, and could not have been made by the appellant. *** The point of controversy is, was that admission made, or, if made, was it founded in fact or in mistake? The admission certainly refers to a transaction with a deceased person, but that transaction is material only in determining whether the admission was made, or, if made, to enable the jury to give it proper application. *** The evidence of appellant was not intended to prove such settlements as independent facts, disconnected from the admission. The settlements were material only so far as they enabled the jury to determine whether the appellant had made the admission to him, or, if he made it, whether it was founded in fact or in mistake; or to determine whether the admission he made did not refer to settlements in which the decree was not included." Construed as Chief Justice BRICKELL construed the questions propounded, it may be that the ruling in that case was free from error. It would seem, however, that the rule he declared, when applied to the question "if any settlement had been made between him and Morris Cousins since the rendition of said decree, embracing other matters than said decree," cannot be harmonized with the later rulings in Tisdale v. Maxwell, 58 Ala. 40, and Killen v. Lide, 65 Ala. 505. In Wood v. Brewer, 73 Ala. 259, the question arose as follows: Wood owned a plantation, and Hall was either his tenant in possession, controlling the place as such, or he was Wood's superintendent, in control of it. Wood had died before the suit was brought, and the suit was against his administrator. Graham had worked on the place as a laborer, and had transferred his claim for wages to Brewer, who sued for its recovery. There was controversy as to any express contract, or promise to pay Graham for his services, but both Wood and Hall knew of their being rendered, and no dissent by either was shown. The most important issue of fact that arose on the trial was whether Wood or Hall should pay for Graham's services; whether the one or the other had employed him to labor. Proof was made by defendant tending to show that Graham, before he entered...