Rosenbush Feed Co. v. Garrison

• Decision Date: 07 October 1948
• Docket Number: 6 Div. 566.
• Citation: 251 Ala. 245,37 So.2d 106
• Parties: ROSENBUSH FEED CO. et al. v. GARRISON.
• Court: Alabama Supreme Court

37 So.2d 106

251 Ala. 245

ROSENBUSH FEED CO. et al. v. GARRISON.

6 Div. 566.

Supreme Court of Alabama

October 7, 1948

Jack H. McGuire, Jas. W. Strudwick and McGuire & Strudwick all of Tuscaloosa, for appellants.

Jones, Dominick & McEachin and Liston C. Bell all of Tuscaloosa, for appellee.

LAWSON Justice.

On Sunday, September 26, 1943, plaintiff and defendant entered into a verbal contract whereby defendant purchased 2,000 bales of hay from plaintiff at a price of $25 per ton f. o b. plaintiff's barn. The hay was not to be delivered that day. It was later shipped to defendant in five different shipments and it appears that he received it on secular days. Defendant, after receiving the first two shipments, paid a part of the purchase price but refused to pay the balance contending that the hay shipped to and received by him was of a much inferior grade than that which he purchased and that the amount which he had paid exceeded the value of all the hay shipped to and received by him.

Thereupon plaintiff brought this suit to recover the value of the hay for which he had not received payment and which had been delivered to defendant, who accepted and converted it to his own use.

The pleadings show the action of the plaintiff to be one of assumpsit on an implied promise to pay, in quantum valebant. The defendant pleaded the general issue in short by consent. There was verdict for plaintiff. Judgment was in accord with the verdict. Defendant's motion for new trial having been overruled, he has appealed to this court.

Defendant insists that he was entitled to the general affirmative charge on the ground that the contract of sale of the hay was executed on Sunday and for that reason was void.

The contract between the parties, having been executed on Sunday, was void. § 21, Title 9, Code of 1940. If his right to recover depended upon the enforcement of the contract the plaintiff would have to fail in this action. But this is not a suit upon the contract executed on Sunday; as before pointed out, it is an action of assumpsit upon the implied promise of the defendant to pay for the hay when he accepted it and converted it to his use upon subsequent secular days. Defendant admitted that he had sold some of the hay but contended that some of it he was unable to sell and still had it in his warehouse. On the other hand, there was evidence from which the jury could have found, as it evidently did, that defendant had sold the hay which he received from the plaintiff.

Therefore, the question presented for our decision is whether or not the fact that the contract between the parties was entered into on Sunday, but the hay was delivered, accepted, and converted on subsequent secular days, will preclude a recovery by the seller in an action of assumpsit in quantum valebant.

We hold that plaintiff was entitled to recover the reasonable market value of the property accepted and converted by the defendant and for which he had not paid plaintiff. The implied obligation to pay in this case was assumed on secular days, and this obligation is independent of and disconnected from the Sunday contract. A. Goletti, Inc., v. Andrew Gray Co., 125 Miss. 646, 88 So. 175; King v. Graef et al., 136 Wis. 548, 117 N.W. 1058, 20 L.R.A.,N.S., 86, 128 Am.St.Rep. 1101; Gist v. Johnson-Carey Co., 158 Wis. 188, 147 N.W. 1079, Ann.Cas.1916E, 460; Spahn v. Willman, 1 Pennewill 125, 17 Del. 125, 39 A. 787. The fact that defendant received the hay on secular days and the evidence supported a finding that he subsequently sold it in the course of his business, distinguishes this case from O'Donnell v. Sweeney, 5 Ala. 467, 39 Am.Dec. 336, and Dodson v. Harris, 10 Ala. 566, where the sale and delivery appear to have been made on Sunday and there was no evidence that the purchaser subsequently resold the property. Nor is the conclusion here reached based on the theory of a subsequent ratification of the Sunday contract. O'Donnell v. Sweeney, supra; Butler v. Lee, 11 Ala. 885, 46 Am.Dec. 230; Moseley v. Selma National Bank, 3 Ala.App. 614, 57 So. 91. We think the conclusion here reached is in accord with the decision of this court in the case of Stewart v. Harbin, 206 Ala. 484, 90 So. 496.

On direct examination of plaintiff as a witness in his own behalf, the trial court sustained defendant's objections to certain questions propounded plaintiff by his counsel. Thereafter, on cross-examination of plaintiff, counsel for defendant propounded questions similar to those to which their objections had been sustained on direct examination. The trial court sustained plaintiff's objections to such questions. Having invoked rulings of the trial court which prevented plaintiff from testifying on direct examination in this cause on this phase of the case, defendant cannot now complain of the court's action in preventing him from questioning the plaintiff in regard to such matters on cross-examination. But even if error did appear in such ruling it was rendered innocuous in that it appears that plaintiff was subsequently cross-examined and testified to facts sought to be elicited by the questions to which plaintiff's objections were sustained. Loreno v. Ross, 222 Ala. 567, 133 So. 251.

After plaintiff had rested his cause the trial court permitted him to introduce further testimony. Again plaintiff rested and again before the defendant presented his evidence was permitted to offer additional evidence. Defendant insists that such action of the court constitutes reversible error.

Section 252, Title 7, Code of 1940, provides as follows: 'The court may, at its discretion, at any time before the conclusion of the argument, when it appears to be necessary to the due administration of justice, allow a party to supply an omission in the testimony on such terms and under such limitations as the court may prescribe.'

There is nothing in this case to show that the trial court abused the discretion vested in it by the statute above-quoted. Atlanta Life Ins. Co. v. Ash, 228 Ala. 184, 153 So. 261; Chandler Bros. v. Higgins, 156 Ala. 511, 47 So. 284; Birmingham Ry., Light & Power Co. v. Saxon, 179 Ala. 136, 59 So. 584.

One of the grounds of the motion for new trial was in substance that defendant was required to select the jury in this case from a jury list on which was a relative, within the prohibited degree, of Mr. Bell, one of the attorneys representing the plaintiff.

By statutory prescription, it is ground for challenge for cause that a juror is related by consanguinity within the ninth degree, or by affinity within the fifth degree (computing according to the rules of the civil law) to any attorney in the cause to be tried. § 55, subd. 11, Title 30, Code of 1940.

In compliance with this statutory provision, the prospective jurors were asked by the trial court if any of them were so related to any of the attorneys in the case, calling the attorneys by name. It appears without dispute that one of the prospective jurors, Lester Mills, was related to Mr. Liston Bell, one of counsel for plaintiff, within the prohibited degree. It is also without dispute that this prospective juror failed to respond to the inquiry propounded to him as to such relationship. Nor did Mills or the attorney to whom he was related in any way make known such relationship to the court, the defendant, or his counsel.

Although it is uncontroverted that this relationship was unknown to the defendant and his counsel, it appears that counsel for the defendant struck the name of Lester Mills from the jury list. Consequently, Mills did not serve on the jury which tried this case.

Mills was disqualified to sit on the jury in this case and unquestionably he should have made it known that he was related to Mr. Bell. In fact, we think Mr. Bell was under the same obligation.

If Mills had served on the jury which tried the case, the trial court's action in refusing to grant a new trial to defendants would require a reversal, for we are in accord with the...