Peck v. Ryan

Citation110 Ala. 336,17 So. 733
PartiesPECK ET AL. v. RYAN.
Decision Date21 May 1895
CourtSupreme Court of Alabama

Appeal from circuit court, Morgan county; H. C. Speake, Judge.

Action in a justice court by E. H. Peck and others against Silas P Ryan. From a judgment for plaintiffs, rendered on appeal to the circuit court for only a part of their claim, they appeal. Reversed.

This suit was brought by the appellants, E. H. Peck & Bro against the appellee, S. P. Ryan, to recover the balance of an account owing by defendant to plaintiffs. Defendant pleaded the general issue and payment. Part of this account was for goods furnished to one Pleas Stewart on the credit of defendant. Plaintiffs' evidence tended to show that defendant authorized them to let Stewart have goods on his credit, they having previously refused Stewart credit on his own account. After this, defendant paid plaintiffs small accounts made by Stewart from time to time. Defendant's evidence tended to show that he told Stewart to go to the stores there in town and get such articles as he might need and that no special mention was made of plaintiffs; that thereupon Stewart, who was working for defendant, frequently made purchases from plaintiffs and others on defendant's credit, and with his knowledge, for which he subsequently paid, before the articles here involved were obtained; that this was matter of frequent occurrence, known to plaintiffs and never revoked by defendant. Several months before the suit, one of the plaintiffs went with his books to defendant's house and stayed all night. The account was discussed and the books examined. After this suit was commenced, and some months before its trial in the justice's court, defendant demanded and received an itemized statement of his account. On the occasion of the examination of the books at his house, and in defendant's testimony on the trial in the justice's court, defendant did not deny the correctness of the debit items of his account, except as to the items furnished Stewart. He contended then and contends now, that he made, among other payments, as to which there is no dispute, four separate $50 payments; two to plaintiffs direct, and two to one Mason, plaintiffs' bookkeeper, whose connection with them ceased some years ago, and who died before the commencement of the suit. The court allowed defendant and others to testify to a statement made by Mason after his employment had terminated, in the presence of one of the plaintiffs, concerning such payments. The rulings on this evidence are sufficiently shown in the opinion. Plaintiffs conceded that defendant had made three separate $50 payments, but denied that there were four such payments. Defendant was, against the objection of plaintiffs, allowed to testify to the two $50 payments, claimed to have been made to Mason, as well as the two claimed to have been made to plaintiffs themselves. This testimony was subsequently excluded from the jury. The plaintiffs requested the court to give to the jury the following written charges: (1) "There is no testimony before the jury of four fifty-dollar payments made by defendant on the account sued on." (2) "If the jury believe from the evidence that an itemized statement of the account sued on was handed defendant a reasonable time before the trial in the justice court, and that defendant testified in this case on the trial before the justice of the peace, and in his testimony there given, he failed to deny or impeach the correctness of the items of his individual account, then that was an admission by defendant of the correctness of the debit items of his individual account." Plaintiffs separately excepted to the refusal of each of these charges, and also excepted to the court giving the following written charge requested by defendant: "If plaintiffs relied on express authority given them in person by defendant to let Pleas Stewart have goods on defendant's credit, they cannot recover on proof of a more general authority to Stewart to buy goods on defendant's account generally, without mention of plaintiffs."

E. W. Godbey, for appellants.

Speake & Russell, for appellee.

HARALSON J.

1. H M. Mason was the clerk and bookkeeper of the plaintiffs, at the time the account was contracted, for the alleged balance due, on which this suit was brought. Said Mason had died some time before the trial of the cause. One of the matters of dispute on the trial was, whether or not the defendant should be credited on the account with $50, which he alleged he had paid to said Mason for plaintiffs on account, in the year 1889, and which was not credited to defendant by Mason on defendant's account with plaintiffs. The defendant sought to prove by one Robertson, that in the spring of 1891, at the courthouse in Decatur, in the presence of E. H. Peck, one of the plaintiffs, and defendant, he heard a conversation between said Mason and defendant, in which the former stated to the latter, that he knew defendant paid him $50, but whether he gave him credit for it or not, he could not say; and all that said Peck said was, he only wanted what was right and defendant said the same thing. It was in proof that there were three credits of $50 each, on said account, entered as paid at different dates. To the introduction of...

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11 cases
  • Manning v. State
    • United States
    • Supreme Court of Alabama
    • March 29, 1928
    ...... section 9507 of the Code, as to charging upon the effect of. the testimony, not being required to do so by one of the. parties. Peck & Bro. v. Ryan, 110 Ala. 336, 17 So. 733; Thomas v. State, 150 Ala. 31, 43, 43 So. 371;. Cole Motor Car Co. v. Tebault, 196 Ala. 382, 72 So. 21; ......
  • Thomas v. State
    • United States
    • Supreme Court of Alabama
    • January 24, 1907
    ...to give a written instruction to the effect that there is no evidence of such fact, yet it may do so without committing error. Peck v. Ryan, 110 Ala. 336, headnote 3, 17 So. It follows that the first exception to the oral charge cannot avail appellant anything. It is by virtue of section 48......
  • West Pratt Coal Co. v. Andrews
    • United States
    • Supreme Court of Alabama
    • December 19, 1906
    ...... might have been refused, yet the giving of them does not. constitute reversible error. Peck v. Ryan, 110 Ala. 336, 17 So. 733. It is true that, to support the verdict, the. jury must have found that there was a defect in the trestle. It ......
  • Robinson v. Morrison
    • United States
    • Supreme Court of Alabama
    • June 29, 1961
    ...go so far as to establish the garrulous nature of the allegedly acquiescing party. But some predicate must be laid. Pack & Brother v. Ryan, 110 Ala. 336, 17 So. 733, 734, 'The rule for the introduction of admissions from silence, has been stated to be, 'that the statement must be heard and ......
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