Shepherd v. Butcher Tool & Hardware Co.

• Decision Date: 07 December 1916
• Docket Number: 6 Div. 286
• Citation: 73 So. 498,198 Ala. 275
• Parties: SHEPHERD v. BUTCHER TOOL & HARDWARE CO.
• Court: Alabama Supreme Court

73 So. 498

198 Ala. 275

SHEPHERD v. BUTCHER TOOL & HARDWARE CO.

6 Div. 286

Supreme Court of Alabama

December 7, 1916

Appeal from Circuit Court, Fayette County; Bernard Harwood, Judge.

Assumpsit by the Butcher Tool & Hardware Company against J.C. Shepherd. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Act April 18, 1911 (Laws 1911, p. 450) § 6. Affirmed.

Beasley & Wright, of Fayette, for appellant.

McArthur & Howard, of Birmingham, for appellee.

THOMAS J.

The first five counts of the complaint were the common counts. The sixth was a special count, alleging that the goods were sold to the defendant through Leeper & Co., agents of the defendant, acting within the line and scope of their authority.

There was no error in the ruling of the trial court on defendant's demurrers to the several counts of the complaint.

The general rule that the defense of bona fide purchaser for value without notice is defensive matter that must be set up by plea or answer is appropriate (Kelley v Chandler, 184 Ala. 358, 63 So. 941), yet, as each count of the complaint charged a sale to defendant in manner alleged, defendant's first plea was inapt.

Defendant's seventh assignment of error is based on the ruling of the court sustaining the demurrer to defendant's fourth plea. The matter thus sought to be specially pleaded could be given in evidence under the general issue. Moreover, the argument of appellant's counsel addressed to this assignment did not amount to an insistence thereon. The same may be said of his twenty-second, twenty-third, twenty-fifth, and twenty-sixth assignments of error. Georgia Cotton Co. v Lee, 72 So. 158; Republic, etc., Co. v Quinton, 69 So. 604; W.U. Tel. Co. v. Benson, 159 Ala. 254, Johnson v. State,

152 Ala. 93, 44 So. 671.

The shipments were made by railroad, and the bills of lading thereof had a tendency to show direct sale and shipment of the goods from the plaintiff to defendant, and not to Leeper & Co., and that the defendant received the same at the point where the evidence shows his house was in course of erection. Southern Railway Co. v. Brewster, 9 Ala.App. 597, 602, 63 So. 790; Code, 1907, §§ 5547, 6136.

As to the material so shipped, the testimony shows without dispute that the plaintiff made the charge therefor to the defendant in the due course of business, in plaintiff's loose-leaf ledger--that is to say, a ledger in which each page is separate and distinct.

Section 4003 of the Code of 1907 authorizes the introduction in evidence of the books of account of any merchant, shopkeeper, physician, blacksmith, or other person doing a regular business and keeping daily entries thereof, as proof of such accounts, upon these conditions: (1) That he kept no clerk, or else that the clerk is dead or is otherwise inaccessible, or that from any cause the clerk is disqualified from testifying; (2) that proof is made (the party's oath being sufficient) that the book tendered is his book of original entries; and (3) that there is inspection by the court to see if the books are free from any suspicion of fraud.

Upon inspection by the trial court of this entry in the loose-leaf ledger, it was admitted in evidence, after the correctness of the charge was shown by the party making the sale, and by plaintiff's agent who made the shipment and the entry in the merchant's book of accounts. In fact, defendant did not deny the correctness of the bill of materials so charged, nor that they were used in the construction of his house, but relied for his defense on the denial of liability for such purchase. Code 1907, § 4003; Stoudenmire v. Harper Bros., 81 Ala. 242, 1 So. 857; Horton v. Miller & Bro., 84 Ala. 537, 4 So. 370; Davie v. Roland, 3 Ala.App. 567, 57 So. 1034; Stewart Bros. v. Harris-Cortner & Co., 6 Ala.App. 518, 60 So. 445.

There was no error in the admission of the original leaf of the ledger with the entry showing the charge to J.C. Shepherd of the entire bill of goods, which bill, the evidence further shows, was shipped by plaintiff from Birmingham to defendant at Berry, Ala. Likewise there was no error in the giving of plaintiff's requested charge E.

Appellant cites Beitman v. Birmingham P. & G. Co., 185 Ala. 313, 321, 64 So. 600. That case referred to the making of a memorandum by an agent, where it did not appear that the writing was made by said agent in the due course of his employment, nor that it was not made long after his employment was terminated. For such reason the writing was held not admissible as evidence against the defendant.

In the instant case the original ledger entry is corroborated by the bill of lading, by evidence on the part of the plaintiff that J.C. Shepherd was worthy of credit (a fact then known to plaintiff) and that Leeper & Co. had no line of credit with plaintiff (a fact then known to plaintiff), and by the further fact that immediately on the shipment of the goods plaintiff's agent made demands for payment on account by the defendant, and gave him notice not to use the material in the construction of his building unless he had authorized the purchase and would pay the purchase price of the same. Such circumstances were competent as tending to show to whom, in fact, the credit was extended by the plaintiff.

It is within the discretion of the trial court to allow a leading question to direct the attention of the witness to the matter of which he is interrogated. In Anderson v. State, 104 Ala. 83, 16 So. 108, it was held that a reversal should not be awarded for a flagrant violation of the rule against leading questions. Washington v. State, 155 Ala. 2, 46 So. 778. However, when the objection was made to the leading question, the court said to the witness, "You can state the facts how they were ordered," etc., meaning how the goods were ordered. Thus there was no abuse of discretion by the trial court, but the facts were permitted to be given in evidence.

It was not competent to inquire of the witness Leeper the "reason why" the contract was "taken away" from him. He should have been allowed to state whether or not the contract was in force up to the completion of the building; and, if it was not in force, when it was terminated.

The agent of plaintiff testified of the sale of the building material for use in defendant's house; that he made a memorandum of it at the time of his estimate of $585, which was the amount agreed to be paid for the material on the acceptance of plaintiff's bid by L.F. Leeper & Co. for the account of J.C. Shepherd. Such evidence was competent as having a tendency to shed light on the inquiry to whom was the credit extended. The witness did not answer the question, "Was any credit extended to Leeper & Co. in this transaction?" hence no error resulted from the court's ruling as to the competency of the evidence thus sought.

There is no merit in defendant's twenty-third assignment of error. The witness was permitted to state, as nearly as he could, what was said by the defendant to plaintiff's agent, Martin, at the designated time and place.

The witness Posey, who made up the estimates for Leeper & Co. having testified for the defendant, the...