Mitchell v. Birmingham News Co.
| Decision Date | 29 October 1931 |
| Docket Number | 6 Div. 951. |
| Citation | 137 So. 422,223 Ala. 568 |
| Parties | MITCHELL v. BIRMINGHAM NEWS CO. |
| Court | Alabama Supreme Court |
Rehearing Denied Nov. 19, 1931.
Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.
Action on account by the Birmingham News Company against O. O Mitchell and others. From a judgment for plaintiff, the named defendant appeals. Transferred from Court of Appeals.
Reversed and remanded.
O. B Cornelius, of Birmingham, for appellant.
R. Du Pont Thompson and Walter S. Smith, both of Birmingham, for appellee.
The suit was by the Birmingham News Company against O. O Mitchell and J. H. McDonald as individuals and as partners doing business under the firm name of the Peerless Motor Sales Company, to recover an advertising account; the cause of action being stated on account, account stated, and in count 4 for breach of the written contract made a part thereof. There was verdict and judgment for the plaintiff, from which defendant Mitchell alone appeals.
It appears that as to such appeal the requirements of section 6143, Code 1923, have been substantially complied with and the suggestion to the contrary is without merit. The case of Sherrod v. McGruder, 209 Ala. 260, 96 So. 78, is not analogous.
There was motion for a new trial which was overruled, and the bill of exceptions was presented to the presiding judge and by him signed within ninety days after the denial of said motion. It has been ruled that under the provisions of section 6433, Code 1923, the making of the motion extended the time for presenting the bill of exceptions, and that the case of McMillon v. Skelton, 208 Ala. 693, 95 So. 148, relied upon by appellee, had application to the statute prior to its present change and was therefore inapt. The question was duly considered in J. H. Arnold & Co. v. Jordan, 215 Ala. 693, 112 So. 305, and needs no further comment. The bill of exceptions is therefore properly before us, and the cause is to be considered upon its merits.
In view of the defendants' affidavit denying the correctness of the verified account, it would seem there was error in admitting such account in evidence without further proof. Section 7701, Code 1923; Booker v. Benson Hardware Co., 216 Ala. 398, 113 So. 256. But this account, it appears, was but a copy of the ledger account in evidence, the correctness of which was established by the credit manager of plaintiff, and which was admissible under subdivision 3 of section 7701, supra. Morris v. Bessemer Lumber Co., 217 Ala. 441, 116 So. 528. Moreover, there appears no controversy as to the correctness of the account so far as the items and amounts therein are concerned. We would be unwilling, therefore, to rest a reversal upon this ruling, as clearly the error was without injury to defendant.
The advertisements which appeared in June, July, and August, 1926, were offered in evidence and are set out in the record. Upon their face they appear to be those of the Kitchens Motor Car Company, 415 South Twenty-First street. The contract, the basis of this suit, was with the Peerless Motor Sales Company, by O. O. Mitchell, 210 South Twenty-First street, and bears date June 1, 1926. It was defendant's contention that although he signed this contract, yet it was in September, 1926, and the date is erroneous; further, that the Peerless Motor Sales Company was a partnership formed between defendant McDonald and himself about September 15th, and was therefore not in existence in June, July, and August, when these advertisements were run; that the contract was for advertisements when ordered, and that none were ever ordered; that he never did assume any obligations of the Kitchens Motor Car Company, and had never seen these advertisements until a few days before the trial, and never handed any of them to any representative of plaintiff for insertion in the paper. Plaintiff's representative could not testify that appellant gave him the advertisements, but stated he got them from appellant or some representative of his, and he insists also the date on the contract is correct.
The case presented a sharp conflict in the proof. Under these circumstances we think there was no error in the court permitting plaintiff on cross-examination of appellant to elicit proof that he at one time had stock in the Kitchens Motor Car Company, a corporation, and the amount thereof. His interest therein was proper to be considered upon the question as to whether or not the advertisements were given for his benefit in fulfillment of the contract. We are of the opinion, however, there was prejudicial error committed in sustaining plaintiff's objections to questions propounded to Fullerton, plaintiff's credit manager, on...
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