Proctor & Gamble Co. v. Blakeley Oil & Fertilizer Co.
| Decision Date | 10 July 1907 |
| Parties | PROCTOR & GAMBLE CO. v. BLAKELEY OIL & FERTILIZER CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
When a plaintiff offers evidence which is essential to make out his case, and the court excludes it, he may decline to introduce further evidence, without dismissing his action or voluntarily submitting to a nonsuit, and will not thereby be prevented from excepting to the direction of a verdict for the defendant after the court has allowed the latter to introduce evidence.
"A witness cannot, without finally testifying from his recollection of the facts, swear from a memorandum, without showing that he made the memorandum or at some time knew it to be correct."
Where no direct evidence of the execution of a written instrument is attainable, its execution may be proved by circumstances. The circumstantial evidence as to the execution of a written instrument, proof of the legal existence and contents of which was necessary to make out the plaintiff's case, and which was shown to be in existence and beyond the control of the plaintiff and the jurisdiction of the court, was sufficient to authorize the admission in evidence of a proved copy of the same.
In a suit upon an alleged common-law award, the plaintiff makes out a prima facie case by proving the submission as alleged and the award as declared on, in accordance therewith.
Error from Superior Court, Early County; Moses Wright, Judge.
Action by the Proctor & Gamble Company against the Blakeley Oil & Fertilizer Company. Judgment for defendant, and plaintiff brings error. Reversed.
A witness cannot, without finally testifying from his recollection of the facts, swear from a memorandum without showing that he made it or at some time knew it to be correct.
The Proctor & Gamble Company, of Cincinnati, Ohio, a corporation sued the Blakeley Oil & Fertilizer Company, a corporation of Blakeley Ga., to recover the sum of $1,732.38 and interest thereon from May 17, 1903. The petition made the following allegations: On March 25, 1903, the plaintiff purchased of the defendant "two tanks of crude cotton seed oil, on a basis of prime," as appeared by reference to a copy of the contract, attached to the petition and marked as an exhibit. "Upon the arrival of said oil at destination, a difference arose between plaintiff and defendant as to the quality of same, and as to what allowance should be allowed plaintiff off the contract price of 33 1/2 cents per gallon both parties to the contract agreeing that the oil was not prime crude, and plaintiff having already paid for said oil at the contract price of 33 1/2 cents per gallon, as prime crude." In accordance with the terms of the contract, as shown by the copy thereof attached as an exhibit, "and by agreement between plaintiff and defendant, the said differences as to quality and as to what allowance per gallon plaintiff should be allowed off the contract price were submitted to the arbitration committee on cotton seed products of the Memphis, Tenn., Merchants' Exchange, for arbitration and award in accordance with the rules and regulations of" such exchange applicable to such cases. A copy of the alleged submission to arbitration was attached as an exhibit. This arbitration committee, on May 7, 1903, made an award, "in which they decided that the oil was not prime crude, and in which they allowed plaintiff 13 cents per gallon on each tank"; a copy of the award being attached as an exhibit. The two tanks, to wit, P. & G. 85-49,700 and P. & G. 532-50,250, contained, respectively, 6,626 and 6,700 gallons." The "defendant is indebted to the plaintiff, on and by reason of said award, in the sum of $1,732.38, together with interest thereon at the legal rate from May 7, 1903, the date of the award," which it fails and refuses to pay. The copy of the contract attached to the petition, was as follows:
The alleged copy of an agreement for arbitration, which it is unnecessary to set out in full, stipulated that the parties signing it agreed to submit the differences and controversies existing between them "to the arbitration and decision of the arbitration committee on cotton seed products of the Memphis Merchants' Exchange, or a quorum of them," and authorized said arbitration committee, or a quorum thereof, "to arbitrate, award, adjust, and determine" the matter. It then concluded as follows:
The alleged award declared on, as shown by the exhibit thereof attached to the petition, was as follows:
The defendant, in its answer, admitted the sale of the oil to plaintiff as alleged under the contract, a copy of which was attached to the petition; that the oil was not prime crude; and that after its arrival at destination differences arose between the parties as to its quality and what allowance from the contract price for prime crude oil should be made in favor of plaintiff. It denied that the parties had ever agreed to submit the matter in controversy to the arbitration of the arbitration committee on cotton seed products of the Memphis Merchants' Exchange, and alleged that "the same was not submitted in writing by the parties or their authorized agents." When the case came on for trial the defendant demurred to the petition, upon the ground that it appeared therefrom that the subject-matter of the award was more than $500 and the submission to arbitration was not in writing. Thereupon the plaintiff, with leave of the court and without objection, amended the copy of the alleged agreement for arbitration attached to the petition by adding, after the words, "The Blakeley Oil & Fertilizer Company, per," the words, "T. B. McDowell, S. & T.," and also by adding after these words the following: "The Proctor & Gamble Co., by J. M. Macdonald, W___." The defendant then amended its answer by alleging "that the alleged submission is not the act or deed of the defendant; that T. B. McDowell had no authority to submit to arbitration the matters and things in controversy on behalf of the defendant." This amendment was sworn to by D. W. James, who further deposed that he was the president of the Blakeley Oil & Fertilizer Company.
Upon the trial the plaintiff introduced the depositions of Harvey J. Morrison and the depositions of George H. Wacher, residents of Ivorydale, Ohio. Morrison deposed that during the year 1903 he was employed by the plaintiff company as superintendent of its oil refinery at Ivorydale, Ohio, and Wacher testified that during that year he was employed by plaintiff at the same place, and that his duties were to draw samples of oil from the tanks. Each of them testified in reference to the drawing of samples of oil from the tanks containing the oil shipped by defendant to plaintiff, and sending such samples by express to N. S. Graves, of Memphis, Tenn. It appeared, upon the reading of Morrison's depositions, that he had been asked: "Do you have an independent recollection of those two particular samples, or do you now depend for your testimony upon memorandum or other sources?" To which he replied: "No, I do not have an independent recollection of these two particular tanks, but can depend upon a memorandum made at the time the samples were drawn. From Wacher's depositions it appeared that he, too, had been asked this same question, and in reply thereto had said: "I answered from memorandum." In each instance, counsel for the defendant moved to rule out the testimony of the witness in reference to the samples of oil, because the answer to the above-quoted question "showed upon its face that the witness was not testifying from memory, but from memorandum, and that, testifying from memorandum, it did not appear that he made the memorandum himself, or at any time knew the memorandum to be correct." The court sustained this motion and ruled out the testimony objected to.
The plaintiff next introduced the depositions of N. S. Graves who testified: ...
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