Moore v. Barber Asphalt Paving Co.

• Decision Date: 23 June 1898
• Citation: 118 Ala. 563,23 So. 798
• Parties: MOORE v. BARBER ASPHALT PAVING CO.
• Court: Alabama Supreme Court

23 So. 798

118 Ala. 563

MOORE v. BARBER ASPHALT PAVING CO.

Supreme Court of Alabama

June 23, 1898

Appeal from circuit court, Mobile county; William S. Anderson Judge.

Action by the Barber Asphalt Paving Company against Rittenhouse Moore. There was a judgment for plaintiff, and defendant appeals. Affirmed.

The appellee sued the appellant for $1,400. The complaint contained the common counts and two special counts. A demurrer was sustained to the third count, which was one of the special counts, and no amendment was made. The remaining special count (the second) claimed $1,400 for the breach of an agreement in writing between plaintiff and defendant whereby defendant, in consideration of the plaintiff's agreement to deliver to barges on the Mississippi river, at or near the foot of Girod street, in the city of New Orleans La., and at the foot of General Taylor street, in said city of New Orleans, 1,000 cubic yards of macadam at $2.70 per cubic yard (the measurement of plaintiff to be checked by engineer at Port Eads, in the state of Louisiana), agreed to take and pay therefor, when so delivered, at said price of $2.70 per cubic yard, $100 in cash, and the balance, one-half estimate upon delivery to barges, and remainder upon receipt of engineer at Port Eads, without risk to plaintiff. The plaintiff fully performed its part of said contract, and the defendant had failed to pay $1,400 of the purchase price. To the common counts the appellant pleaded (1) the general issue; (2) payment; (3) that the indebtedness claimed under each of the common counts to be due arose out of a special contract, whereby the plaintiff agreed to sell to the defendant, and to deliver to him, on barges, 1,000 cubic yards of macadam, at $2.70 per cubic yard, and that the plaintiff delivered less than 500 cubic yards of such macadam, and that so much of said macadam as was delivered was mixed with dirt and dust, and was thereby damaged and valueless for use as macadam, unless large sums were expended in screening the same, and that defendant was put to large expenses in separating the macadam from the dust and dirt and that the value of the macadam that plaintiff failed to deliver to the defendant was $2,000, and that by the delivery to it of said dirt and damaged macadam, and plaintiff's failure to deliver the entire amount agreed upon, the defendant was damaged in the sum of $3,000, which he sought to recoup, and prayed judgment for the excess. To the second count of the complaint defendant pleaded (1) the general issue; (2) that, before the balance of the $1,400 became payable under the contract sued on, plaintiff committed a breach of said contract, in this: that it failed to deliver to defendant the 1,000 cubic yards provided for by said contract; (3) that the plaintiff did not deliver to the defendant said quantity of 1,000 cubic yards of macadam; (4) a plea of recoupment, substantially the same as the third plea to the second count. Demurrers were interposed to these pleas, which were overruled, and issue was joined on said pleas. The evidence showed that the defendant, through Richard Sheridan, as the agent of defendant, went to New Orleans, and purchased from one Tupper, under a written contract dated January 4, 1889, 1,000 cubic yards of macadam to be delivered on barges at the foot of Girod street and General Taylor street, at $2.70 a cubic yard, measurement to be checked by engineer at Port Eads, terms of payment to be $100 in cash, one-half of the balance upon delivery to barges, and the balance upon receipt of engineer at Port Eads, it being understood that Tupper should take no risk in delivery. The contract is in the form of a proposition signed, "T. Tupper," and accepted, "R. Moore &amp Company, by R. Sheridan, Jr." There are no words qualifying the character of the macadam to be delivered, nor stating whether it is to be cleaned or screened or otherwise. This contract is set forth in the opinion at length. The deposition of T. Tupper, who was the representative of the plaintiff in making the contract for the sale of the macadam, was introduced in evidence. Said Tupper testified therein that he made it a condition of the sale that Sheridan, the agent and representative of R. Moore & Co., should examine the macadam, and approve the quality before the contract was entered into, and that Sheridan went and examined it, and after such examination said that it would suit, and the contract was thereupon made. In his deposition, the witness Tupper further testified that the 1,000 cubic yards of macadam which were bought by R. Moore & Co. were delivered on the wharf of the Mississippi river at the points designated in the contract; that it was the macadam which had been examined by Sheridan, the defendant's agent; and that the macadam delivered was the 1,000 cubic yards which was bought by the defendant. He further testified that this macadam was delivered by the plaintiff on the wharf of the Mississippi river, opposite barges placed there to receive the same, and that it was received by Capt. W. M. Woods, who was in charge of said barges. He further testified that there was still due to the plaintiff from the defendant, under such contract, the sum of $1,100. The defendant objected to each of these portions of the witness Tupper's testimony, upon the ground that it was hearsay evidence. Each of the objections were overruled, and the defendant separately excepted thereto. These exceptions constitute the bases of 13 assignments of error on the present appeal. On the cross-examination of the witness Tupper, it was shown by his testimony that said statements are not based on hearsay, but that he testified positively and of his own knowledge that 1,000 cubic yards of macadam were delivered to the barges under said contract. In his testimony the witness Tupper testified that, upon the delivery of the 1,000 cubic yards of macadam, there was given a receipt therefor, signed, "W. M. Woods, per Eldridge." This receipt was attached as an exhibit to his deposition. The defendant objected to the introduction of this receipt in evidence, and duly excepted to the court's overruling his objection. It was shown by the evidence that, in the transportation of the 1,000 cubic yards of macadam, it was...