Sheehan v. Wilmot

• Decision Date: 15 October 1925
• Docket Number: 4 Div. 225
• Citation: 213 Ala. 687,105 So. 909
• Parties: SHEEHAN et al. v. WILMOT.
• Court: Alabama Supreme Court

105 So. 909

213 Ala. 687

SHEEHAN et al. v. WILMOT.

4 Div. 225

Supreme Court of Alabama

October 15, 1925

Rehearing Denied Nov. 12, 1925

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

Action in assumpsit by W.E. Wilmot against F.M. Sheehan and another doing business under the firm name of Sheehan & Linch. Judgment for plaintiff, and defendants appeal. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.

O.S Lewis, of Dothan, for appellants.

Espy &amp Hill, of Dothan, for appellee.

MILLER J.

This is a suit by W.E. Wilmot, doing business under the name of Wilmot Coal Company, against Fred M. Sheehan and J.H. Linch, partners doing business under the firm name of Sheehan & Linch, for $218.83, with interest due by account for several carloads of coal sold by plaintiff to the defendants on divers dates, and an itemized statement of the account as to debits and credits is attached to and made a part of the complaint.

The defendant pleaded general issue and two pleas in the nature of recoupment and set-off. The jury returned a verdict in favor of the plaintiff for $100, and from a judgment thereon by the court this appeal is prosecuted by the defendants.

The debits of the account amounted to $2,608.96 and the credits to $2,408.68, leaving a balance due plaintiff by defendants of $200.28, with interest from December 10, 1921. The controversy is over either two or three cars shipped by mistake by plaintiff to the defendants. The plaintiff claimed two, and defendants claimed three cars of coal were shipped by plaintiff to the defendant by mistake. These cars were received by the defendants, and were included in the debit side of the account. The plaintiff, witness for himself, testified the account as to the debits and credits was correct; as above shown.

The defendants on cross-examination asked plaintiff various questions in different forms, in substance as follows:

"Did you not write defendants a letter asking them to take that coal [the two or three cars shipped to them by mistake], and that you would make it satisfactory with them?"

The court sustained objections of the plaintiff to these questions, and the defendants cannot justly complain at these rulings. The letter was the best evidence; it was in court, in their control at the time; the plaintiff admitted writing it; and the defendants afterwards offered it; and it was admitted in evidence by the court. Solomon v. Rogers, 210 Ala. 423, headnote 14, 98 So. 370; Am. Ry. Exp. v. Stanley, 207 Ala. 380, headnote 3, 92 So. 642. The letter was written on November 15, 1921, and that part of it pertinent reads as follows:

"Then, as stated in our letter to you of yesterday, the mines had shipped you another car, due to the fact that in our anxiety to get your coal started and to you before the threatened R.R. strike of Oct. 30th we wired the office and also the mines, urging them to ship your coal just as quickly as possible, and they construed both wires as separate orders for two cars each. It did not occur to us that they would make this mistake, or we would have wired them not to ship but two cars. However, you are the winner, for we know that you will need the coal, and, as it is, you get it at October prices, which are 25 cents per ton cheaper than it is now. We regret that the mistake was made, for it is not our intention to overload our customers at any time, but we are glad that you get the benefit of the cheaper prices. Please take care of it, and we will arrange satisfactorily with you."

The defendants on December 11, 1921, wrote the plaintiff a letter, which defendants introduced in evidence. That part of the letter applicable to the issue reads as follows:

"We are inclosing you check for four hundred dollars, for which you will please give us credit for on our account; we were very much in hopes to be able to pay in full, and would have been able to have done so, but the weather has been so mild in this section until we have not been able to sell any coal to amount to anything; in fact we have been able to sell a very small quantity of the last five cars that we received, but of course we will sell it from time to time whenever the weather turns cold, and we will remit along as we sell it until we pay up."

The last five cars mentioned in this letter include the two or three cars in controversy shipped by mistake and received by the defendants. One defendant testified that plaintiff sent defendants a telegram in regard to the cars of coal shipped by mistake, which stated:

"By all means to arrange to unload that coal and that he would guarantee us against loss; that the demurrage and reshipment charges would be enormous."

He stated that telegram was lost, and the foregoing was his recollection of its contents. The plaintiff testified he received no telegram from and sent no telegram to, the defendants in regard to these cars of coal.

The defendants were not allowed by the court to ask the plaintiff if the only month in which he shipped out more than three cars was in July and in November, and if he did not write defendants:

"We remember that you said in one of your former letters that three cars was [[were] all that you could handle at one time."

The questions called for no evidence material to the issue; and the plaintiff on cross-examination by defendants had practically answered these questions. He had then already testified on cross-examination as follows:

"I shipped them two cars of coal they did not order. I did not ship two at one time and one at another. I did not have instructions not to ship them over three cars of coal per month; that they could not use over that many cars of domestic coal per month. If they wrote me they could not use over three cars of coal per month, I have no recollection of it."

The court refused motion of defendants to exclude from the account the two cars of coal which were shipped through mistake to the defendants. In this there was no error. They were shipped by mistake, which was admitted, and the evidence tended to show that defendants received, kept, and sold the coal, and that they had not paid for it.

The defendants in their own behalf on direct examination testified that plaintiff came to see them at Dothan to get a full and final settlement of this coal account. Each narrated the conversation between them. They stated to him:

"We expected him to carry out the agreement to take care of the loss we had sustained."

They stated plaintiff replied:

"He was willing to take care of it up to 25 cents per ton; *** that he got as broker 25 cents per ton, and he was willing to give us credit for 25 cents per ton."

The defendant stated they declined this offer in the conversation. The court properly permitted the plaintiff to testify that in this same...