Stoudenmire v. Harper

• Decision Date: 31 January 1887
• Citation: 1 So. 857,81 Ala. 242
• Parties: STOUDENMIRE v. HARPER and others.
• Court: Alabama Supreme Court

1 So. 857

81 Ala. 242

STOUDENMIRE v. HARPER and others.

Supreme Court of Alabama

January 31, 1887

Appeal from circuit court, Coffee county.

Action on promissory note.

The appellant, M. G. Stoudenmire, brought suit against the appellees, Harper Bros., on a note for $430.92 made by them dated January 9, 1882, and payable one day after date, to appellant, with interest from date. The appellees pleaded the general issue, payment, accord and satisfaction, and set-off. R. Harper, one of the appellees, being introduced as a witness in their behalf, produced a memorandum of an account against the appellant, which he testified was correct, and taken from the books then in court, and thereupon offered to use said memorandum in testifying before the jury. The appellant objected to this use of the memorandum, on the ground that the books were the original and best evidence of their contents. The court overruled the objection, and allowed the witness to use the memorandum in testifying, and the appellant excepted. The witness further testified, in reference to said memorandum, that it was not a copy of the entries in the books from which it was taken, but an addition by witness of amounts found upon the books.

The appellant had been in the employ of appellees as their bookkeeper for the years 1881, 1882, 1883, and 1884, and purchased goods from them during that time, which he charged to himself at original cost. One of the items upon said memorandum was a charge of 10 per cent. on the original cost of the goods purchased by appellant, claimed by appellees for freight thereon, and cost of laying down said goods at Elba their place of business. Appellees introduced two merchants of Elba as witnesses, who testified that it cost 10 per cent on the first cost of the goods to deliver them in Elba, and that it was a custom among the merchants of Elba to charge their employes, for goods purchased by them, 10 per cent. on first cost. In rebuttal, appellant offered to prove that he had been engaged in Elba as a book-keeper and clerk for the last 10 or 12 years, and it was his custom to take at original cost the goods which he purchased at the store of his employers. The appellees objected to this evidence, the court sustained the objection, and appellant excepted. The appellant then offered to prove that R. Harper, one of appellees, and appellant, clerked for one Fountaine in the year 1879 and a part of 1880, and that it was appellant's custom, which was known to said Harper, to only charge himself the original cost of goods purchased by him at the store of said Fountaine. The court sustained an objection of appellees to this evidence, and appellant excepted. Appellant next offered to prove that the appellees and one Ham bought out said Fountaine, in the year 1880, while appellant was clerking for him, and hired appellant to clerk for them in the year 1880, and that he got his goods from them at original cost, and they settled with him on that basis making no complaint at his charging said goods to himself at first cost, and that appellees then bought out said Ham, and hired appellant as their book-keeper for the year 1881. The court, on the objection of appellees, excluded this evidence and the appellant excepted.

In their agument to the jury the counsel of appellees offered to refer to and exhibit the memorandum mentioned above. The appellant objected. The court overruled the objection, at the same time telling the jury that it was only a statement of the accounts between the parties, and should not be considered as evidence. The appellant excepted.

When the jury were retiring to consider of their verdict, the court, at the request of appellees, allowed them to take said memorandum out with them, to be used by them as a memorandum. The appellant excepted to this action of the court.

There was proof tending to establish the facts hypothetically stated in the following charges, which were asked in writing by the appellant, and refused by the court separately, and to the refusal of each of which the appellant duly excepted:

"(1) If the proof shows that the Messrs. Harper ascertained in 1882 that Stoudenmire was charging the goods which he purchased from the firm at first cost, and did not make any

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