Pelham v. Chattahoochee Grocery Co.

• Decision Date: 09 June 1908
• Parties: PELHAM v. CHATTAHOOCHEE GROCERY CO.
• Court: Alabama Supreme Court

47 So. 172

156 Ala. 500

PELHAM v. CHATTAHOOCHEE GROCERY CO.

Supreme Court of Alabama

June 9, 1908

Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.

Action by the Chattahoochee Grocery Company against A. Pelham. From a judgment for plaintiff, defendant appeals. Affirmed.

The Chattahoochee Grocery Company sold one Reeves several bills of goods while in business as a merchant. Reeves sold the stock of goods to appellant without paying for the goods purchased from the Chattahoochee Grocery Company and other creditors, and the appellee in this action sought a rescission for fraud and to retake the goods in an action of detinue. The facts are sufficiently stated in the opinion of the court.

The following written charges were refused to the defendant: (1) The affirmative charge. (4) "The court charges the jury that if, at the time of the sale of goods in question, Reeves had on his books solvent accounts due him which amounted to more than he owed, then the court charges the jury that Reeves was not improvident, nor in failing circumstances; and if such be the fact the verdict should be for the defendant." (6) "The court charges the jury that if the value of Reeves' property, including accounts on his books, was more in amount than he owed, and if such accounts could be relied upon, then Reeves was not improvident." (7) "If the jury should believe that Reeves was improvident or in failing circumstances, and that this fact was known to plaintiff's agent at the time he sold the goods, then the court should find for the defendant." (10) "The court charges the jury that, if they believe from the evidence that the witness Mays knew of the financial condition and standing of Reeves at the time of the sale of the goods in question, then you should find for the defendant." (12) "The court charges the jury that the defendant, in order to protect himself in this suit, or against the claim of the plaintiff, was not required to pay full value for the goods, but that the law is satisfied if the defendant paid anything of value for them, and if the jury believe that the defendant paid full value for the goods it will be your duty to find a verdict for defendant." (13) "The court charges the jury that, if they believe from the evidence in this case that the defendant Pelham paid Reeves $150 in money and surrendered a note for $350, or that he did either, for the goods in question, then your verdict will be for the defendant." (16) "The court charges the jury that, although they may believe from the evidence that Reeves committed a fraud in the purchase of said goods such as under the law would entitle the plaintiff to reclaim the goods, yet if they believe from the evidence that the defendant paid value for said goods, then your verdict will be for the defendant."

W. O Mulkey, for appellant.

W. L Lee and C. D. Carmichael, for appellee.

TYSON C.J.

Several exceptions were reserved during the trial to the ruling of the court upon the admission of testimony. The first of these relates to the court's refusal to exclude the answer of witness Pomeroy to certain questions propounded to him. The motion to exclude was upon the single ground that these answers assumed that Reeves, the purchaser of the goods from plaintiff, had failed in business. An examination of the questions and answers to which the objection was interposed will disclose, when fairly construed, that their purpose was simply to fix the time when the goods were sold by plaintiff to Reeves. But, even should it be conceded that the fact of Reeves' failure was assumed in both questions and answers, the fact of his failure is shown undisputably by the testimony in the cause. He was a merchant and according to all the evidence he disposed of his stock of goods to the defendant, either for a consideration the greater part of which was to pay a pre-existing debt which he owed him, or for no consideration whatever, for the purpose of defrauding his creditors; and this disposition of his business was made without paying for much of the goods which he had on hand and which went into the possession of defendant. If this was not a "failure," in the common acceptation of the word, we must confess our ignorance of the meaning of that word. As said in Mayer v. Hermann, 10 Blatchf. 260, Fed. Cas. No. 9,344: "Inability to meet these engagements in the usual course of business has been again and again adjudged to constitute insolvency, within the meaning of the bankrupt law. When, therefore, a merchant fails to pay his notes or other mercantile obligations as they become payable, the immediate presumption of inability to pay arises. This is according to the universal sense of the mercantile world. When a merchant does not so pay, he is at once and everywhere assumed, in the common language applied to the subject, to have failed."

Reeves, the purchaser of the goods, was examined in plaintiff's behalf for the purpose of showing his insolvency or failing circumstances at the time he purchased the goods for which this action was brought to recover. The method adopted to establish his insolvency in the main was to show by him the extent of his indebtedness to other parties. During his examination he stated that he could not say what he owed W. W. Kelly in February, 1903. He was thereupon asked if it was not a fact that on a former trial of this cause he testified that he owed W. W. Kelly & Co. in February, 1903, over $100. The objection interposed to the question was that it called for incompetent and illegal testimony, which was overruled. The witness answered that he did swear on a former trial that he owed W. W. Kelly & Co. over $100. Motion was made to exclude this answer upon the same grounds, which was also overruled. Under our decisions, the soundness of which it is now too late to question, there was no error in either of the rulings. Campbell v. State, 23 Ala. 44; White v. State, 87 Ala. 24, 5 So. 829; Griffin v. State, 90 Ala. 583, 8 So. 812; Hemingway v. Garth, 51 Ala. 530; Thomas v. State, 117 Ala. 178, 23 So. 665; Schieffelin v. Schieffelin, 127 Ala. 35, 28 So. 687.

During the course of the trial this same witness (Reeves) was introduced by defendant for the purpose of showing the value of the goods he sold to defendant and the consideration paid for them. Among other things he testified that Pelham, the defendant, paid him for the goods $150 in cash and surrendered to him his past-due note for $350. On cross-examination by plaintiff's counsel, as a predicate for his impeachment, he was asked if he did not make the statement, at a certain designated time and place, to one Mays, that Pelham paid to him in cash $125 and a note for $350 for the stock of goods. He replied that he had made no such statement. The objection was made to the question that it was not material whether the price paid in cash was $150 or $125 and therefore the testimony was not competent for the purpose of impeaching the witness. On rebuttal, Mays was introduced by plaintiff, and testified, against defendant's objection on the ground above set forth, that Reeves had made the statement indicated by the impeaching question to him. It is unquestionably the law that immaterial matter cannot be made the predicate for the impeachment of a witness. But is it the law, as laid down in the former opinion in this case (146 Ala. 221, 41 So. 12, 8 L. R. A. [ N. S.] 488), that "it is not important that the consideration was in part cash, or even that the price paid was greatly less than the value of the property, provided he (Pelham) parted with a consideration of some value as distinguished from a...