Sellers v. Dickert

• Decision Date: 04 December 1913
• Citation: 185 Ala. 206,64 So. 40
• Parties: SELLERS et al. v. DICKERT et al.
• Court: Alabama Supreme Court

64 So. 40

185 Ala. 206

SELLERS et al. v. DICKERT et al.

Supreme Court of Alabama

December 4, 1913

Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.

Assumpsit by Oma Dickert and another against E.M. Sellers and another. From a judgment for plaintiffs, defendants appeal. Reversed and remanded.

Most of the facts appear from the opinion. The several assignments of error grouped as A, under subdivision 3, refer to the following:

(2) The court erred in overruling objection of appellants to the following question asked by appellees of the witness L.M Winn: "Now, state what was the trade that you made for Misses Dickert and Landt with the Drs. Sellers."

(3) Overruling objection to question to same witness: "Well state whether or not anything was said, Doctor, in this transaction, whether anything was said in this trade with Sellers, or whether it was agreed to by you and Dr. Moore for the plaintiffs, that plaintiffs would wait for the $5,000 to be raised by the trustees before they could receive their $2,000, there or about the time of making this contract."

(4) Answer of witness: "They were to receive $2,000, to be paid by defendant, $1,000 down, and $1,000 in 60 days. It was first agreed that they would pay whatever amount of indebtedness there was on the furniture as soon as it was moved."

(5) Overruling objection to question to same witness: "Well now, what was this you say then? Go on and state."

(9) The court erred in overruling appellant's motion to exclude all the evidence of alleged agreements between defendants and plaintiffs prior to March 18, 1912, as testified to by the witness Winn, to the effect that defendants agreed to buy the property of the Anniston Hospital, or of the plaintiffs, for $2,000, to be paid by defendants.

(10) Overruling objection to question asked the witness Moore: "Go ahead and state the conversation you had."

(11) In declining to exclude the answer to said question: "The conversation didn't amount to anything that night, except that Dr. Sellers said that I could have some influence with Dr. Winn, and that the two of us could manage the other hospital, that he and his brother could not trade with the girls, unless they could do it through us, and that was about all that was done that night. The next day was Sunday, and I was over at the West End Drug Store on Fifteenth street. E.M. Sellers stopped over to see me, and made the proposition that, if I could make the trade with the young ladies, he would give them $1,500, and give Winn and myself $250 apiece for making the trade, and I told him I would see Winn. I saw Winn the next day, and we agreed to call Dr. Sellers and let it be $2,000 for the equipment of the Anniston Hospital to be paid to the young ladies, and not to pay us anything, and we would do just as much towards the consummation of the trade as if he had divided with us."

(12) Overruling objection to question to same witness: "What trade did you finally consummate for them with reference to how much they should receive from the Sellers Bros. for their equipment, good will, established business, etc.?"

(13) Refusal to exclude answer to same: "The final consummation was that the girls were to get $2,000; $1,000 when they moved, and another $1,000 in 60 days."

(18) Overruling objection to question to same witness: "State what Dr. Sellers said on that occasion about the payment of the $2,000."

(19) Failure to exclude answer: "He said he would pay $1,000 when they were moved, and another $1,000 in 60 days, or when he got the first payment of $5,000 from the trade with the city; and I asked him the question, 'Suppose you don't ever get the $5,000?' and he said, 'Yes; but I know we will, and we will guarantee that we do, and that this will be paid.' "

(20) Question to same witness: "Was there anything said, Doctor, about plaintiffs being paid out of the $5,000, and having to be paid out of the $5,000 before they received anything?"

(21) Failure to exclude the answer: "If there was anything, I didn't hear it."

(22) Motion to exclude all of the testimony of the witness Moore as to an alleged prior verbal agreement or contract, prior to the execution of the contract in evidence, dated March 18, 1912.

(32) Refusal to give charge 6: "The only contract you can consider in this case is that in writing dated March 18, 1912, between plaintiffs and defendants, and you cannot consider any verbal agreement alleged to be made prior thereto, or contemporaneous therewith, between the parties or their agents."

(33) Refusal to give charge 7: "If plaintiffs and defendants agreed on a trade, and subsequently reduced their agreement to writing on March 18, 1912, then you can consider only the said written agreement in determining the contract between the parties."

(35) Charge 9: "You should not consider any alleged verbal agreement in the case prior to the written agreement dated March 18, 1912, between plaintiffs and defendants, nor any alleged verbal agreement made at the time said written agreement was made."

The question set out in assignment of error 26 is as follows: To the witness Moore: "I will ask you whether or not you mean to say, by the words 'due by the terms of the original contract,' due by the terms of the verbal contract, what was the original contract;" and the answer: "$1,000 down, and $1,000 in 60 days."

Rutherford Lapsley and James F. Matthews, both of Anniston, for appellants.

Willett & Willett, of Anniston, for appellees.

McCLELLAN J.

Prior to March 18, 1912, Misses Dickert and Landt (appellees) owned and operated the Anniston Hospital, and Drs. E.M. and W.D Sellers (appellants) owned and operated the Sellers Hospital. With the purpose of establishing out of these two properties, and equipments, and institutions a public hospital in Anniston, Misses Dickert and Landt constituted Drs. Winn and Moore their agents to negotiate with the Drs. Sellers, and also bind them in the premises. On March 18, 1912, the Drs. Sellers and Misses Dickert and Landt (through the hand of one of their agents) signed the instrument of which the following is the substance: "Know all men by these presents that this contract is hereby made by and between M.O. Dickert and O.V. Landt, doing business as the Anniston Hospital Company, party of the first part, and E.M. Sellers and W.D. Sellers, party of the second part, and it is mutually agreed and understood as follows: That, in consideration of the mutual agreement of the parties hereto, the parties of the first part contract and agree to sell and convey to the said parties of the second part the equipment, and outfit, and all property connected therewith, not including the real estate in which the same is located, of the said Anniston Hospital Company in consideration of the sum of one ($1.00) dollar to be paid by the said parties of the second part to the parties of the first part; and the parties of the second part contract and agree,...