Rice v. Schloss

• Decision Date: 06 May 1890
• Parties: RICE v. SCHLOSS ET AL.
• Court: Alabama Supreme Court

7 So. 802

90 Ala. 416

RICE v. SCHLOSS ET AL.

Supreme Court of Alabama

May 6, 1890

Appeal from city court of Montgomery; THOMAS M. ARRINGTON, Judge.

Moore & Finley and Rice & Wiley, for appellant.

Arrington & Graham, for appellees.

MCCLELLAN J.

It has been suggested in argument that certain papers evidencing payments by defendant's intestate to the plaintiffs which are made Exhibits 1, 2, 3, 4, 5, and 6 to the bill of exceptions, do not appear to have been read in evidence, and hence cannot be considered in reviewing the charges given and refused on the trial below. It is true that the only positive statement contained in the bill of exceptions on the point is that "the defendant then offered to read in evidence to the jury the originals, of which said Exhibits 1, 2, 3, 4, 5 etc., are copies;" and it may be conceded that, if nothing else appeared in regard to them, we could not treat them as having been before the jury. But both the defendant's and plaintiffs' witnesses testify about these papers in a way that would have been inexplicable to the court or jury had they not been in evidence; and their exhibition to the bill of exceptions, with appropriate identification by a witness on the stand, can only be accounted for on the assumption that they were read to the jury. As no objection was made to them, no ruling of the court invoked or had on their competency, and they could have been exhibited for no other purposes than as a part of the evidence in the case, we shall also consider them.

Their tendency, though weak and inconclusive, was to establish credits on the account upon which the suit was brought to the extent of their several amounts. There was other evidence that the amount represented by these checks, drafts, etc., which purported to have been drawn in favor of, and paid to, plaintiffs, had not been credited on the account in suit, though the transactions were within the time covered by that account. Moreover, plaintiffs' witness does not appear to have very clearly explained why these drafts had no connection with the account sued on. These papers, and the oral evidence in regard to them, tended, we think, necessarily, to impeach the correctness of the statement of account which was made the basis of the action, at least in such sort that it was proper for the jury to consider them. Furthermore, the witness Englehardt had testified to discrepancies in plaintiffs' account of itself, and also between it and another statement of the indebtedness furnished him by plaintiffs' book-keeper. It may be that none of this testimony, nor all of it together, was sufficient to falsify the statement of indebtedness sued on; but whether it was sufficient or not was manifestly a question for the jury. The court in its general charge instructed the jury that "if the account or accounts of plaintiffs against Rice & Wilson [Rice being defendant's intestate] were presented to Rice & Wilson, and were retained by them without objection for an unreasonable time, then the law conclusively presumes that the accounts were correct." This charge was confessedly erroneous. A reversal on account of it is sought to be avoided by an invocation of the doctrine of error without injury; the theory of appellee necessarily being that there was no evidence upon which the jury might have based an impeachment or falsification in whole or in part of the account or accounts thus presented to Rice & Wilson, and not objected to by them. That theory, as we have seen, is unsound. There was such evidence. The charge erroneously took its consideration away from the jury by making a fact conclusive which was only prima facic evidence of correctness, and we cannot see that it operated no detriment to the defendant.

The paragraph in which is found that part of the general charge quoted above contained also the following: "And it would be strange if there should have been errors in the accounts of Schloss & Kahn against Rice & Wilson, and, if they were in fact received monthly, that the latter should have kept on buying goods, and trading with them, if they did...