Wadsworth v. Dunnam

• Decision Date: 17 May 1898
• Citation: 117 Ala. 661,23 So. 699
• Parties: WADSWORTH v. DUNNAM ET AL.
• Court: Alabama Supreme Court

23 So. 699

117 Ala. 661

WADSWORTH v. DUNNAM ET AL.

Supreme Court of Alabama

May 17, 1898

Appeal from circuit court, Shelby county; George E. Brewer, Judge.

Action by F. P. and C. L. Dunnam against A. J. Wadsworth. From a judgment for plaintiffs, defendant appeals. Reversed.

This action was brought by the appellees against the appellant and counted upon eight promissory notes, executed by the defendant to the plaintiffs. This is the second appeal in this action. 13 So. 597. After the remandment of the cause the defendant filed several pleas, setting up as a defense want of consideration and failure of consideration. There were, among the number of special pleas filed, two pleas the substance of which is sufficiently stated in the opinion. The demurrer to these pleas, the grounds of which are also shown in the opinion, was sustained.

The plaintiffs introduced in evidence the notes sued on, and it was agreed by the parties to the cause that said notes were given by the defendant to the plaintiffs in settlement of an account made by the defendant with the plaintiffs.

The defendant introduced in evidence plaintiffs' books containing said account, made by defendant during the years 1890 and 1891, in which account were sundry items of said Ginseng Cordial, charged as "B. B." Said account contained, also, sundry items of goods, wares, and merchandise purporting to be charged on Sunday, and said notes were given in settlement of this account. Said Ginseng Cordial was sold by the plaintiffs to the defendant in beat No. 4, Shelby county, Ala., during the years 1890 and 1891. The defendant introduced in evidence an act of the general assembly of Alabama, found on page 613 of the Acts of 1882-83, prohibiting the sale of intoxicating bitters or beverages in precinct No. 4, Shelby county.

The evidence on the part of the defendant tended to show that said Ginseng Cordial was intoxicating bitters or beverages. The evidence on the part of the plaintiffs tended to show to the contrary. Here the defendant offered to hand to the jury and to introduce in evidence two bottles labeled Ginseng Cordial, and purporting to be Ginseng Cordial, and to have been prepared and put up by Nabors, Morrow & Sinnige, of Birmingham, to be smelled, or drank, or tasted by the jury as they might see proper. The plaintiffs objected to the introduction of said bottles for such purpose, and the court sustained the objection, and said bottles and contents were excluded from the evidence. To the ruling of the court the defendant excepted. The evidence on the part of the defendant tended to show that there were no medicinal properties in the ingredients mentioned as the component parts of Ginseng Cordial.

Here the defendant introduced as a witness in his behalf Dr. W. S Du Bose, who testified that he had been practicing medicine 40 years. Witness was requested to taste the contents, respectively, of two one-ounce phials, and state what the contents were. He testified, after having tasted, that the one contained, in his opinion, a mixture of tincture of cinchona and red pepper, and the other tincture of gentian. Here the defendant announced that he did not wish to ask the witness any further questions. Then the plaintiffs asked the witness if he had ever drank Ginseng Cordial, to which he replied that he had not; that when he drank at all he drank whisky; that he had seen the formula of Ginseng Cordial manufactured by Nabors, Morrow & Sinnige, of Birmingham, and had been in that establishment when the same was being prepared in bulk, and had seen the various ingredients of which it was made weighed, measured, and mixed. Witness was here asked by the plaintiffs if, in his opinion, said Ginseng Cordial was intoxicating. The defendant objected to the question, except the plaintiffs make the witness their own as to such matters, upon the ground that said matters were germane to those inquired about on the direct examination. Here the court ruled that the defendant had made the witness his own by introducing him, and that the plaintiffs had a right to examine him on all matters pertinent to the issue, and then overruled defendant's objection. To the ruling of the court, in overruling defendant's objection and in permitting the plaintiffs to examine the witness as to matters not inquired about on the direct examination, and in holding that and defendant had made the witness his own as to all matters pertinent to the issue by having introduced him as a witness in his behalf, the defendant separately excepted. Witness answered that in his opinion Ginseng Cordial was not intoxicating, and that in his opinion it was not reasonably susceptible of use as an intoxicant or as a substitute for ordinary intoxicating beverages, and that Ginseng Cordial contained medicinal properties. Witness was here shown the label and bottle, and read therefrom what purported to be the formula for said Ginseng Cordial, and testified that the ingredients named all contained medicinal properties. The defendant, on redirect examination, asked the witness if it was not a fact that there were no medicinal properties in ginseng, one of the ingredients named in said formula, and if the United States Dispensatory did not so hold. The plaintiffs objected to the question upon the ground that the defendant had made the witness his own by introducing him, and could not, therefore, ask to discredit him, contradict him, or impeach him. The court sustained the objection, and refused to allow the question to be answered. To the ruling of the court in sustaining plaintiffs' objection and refusing to allow the question to be answered the defendant excepted. Defendant's evidence tended further to show that the said bitters offered in evidence were the same as that charged to defendant in plaintiffs' said account.

F. P. Dunnam, one of the plaintiffs, testified that during the time of the running of defendant's account he had the entire charge of plaintiffs' business; that he had examined the items in plaintiffs' said books purporting to have been charged on Sundays; that, by comparison of the daybook with the ledger, some of the Sunday dates were errors in posting, and in some cases the daybook bore date of Sunday instead of Monday, the date of Monday being entirely omitted; that he did no business on Sunday, and that Mondays and Saturdays were his busiest days; that during the time of the making of said account plaintiffs' business was conducted in a log house, which was so constructed that the only means of obtaining light during the day was from the front door, there being no opening in the front or rear of said house, and that when he was in the house on Sundays, as he sometimes was, he often left the front door open; that he had no recollection of ever having sold defendant anything on Sunday, or of having charged any such items, but might have sold him something in one or two instances, as a matter of special accommodation. The evidence on the part of the defendant further tended to show that the plaintiffs sold goods on Sundays during the time covered by the account, with open doors, while the evidence of the plaintiffs tended to show to the contrary. This was substantially all the evidence in the case.

The court gave, at the request of the plaintiffs, the following written charges: (1) "If the jury believe from the evidence that the compound or cordial included in Wadsworth's account was not reasonably susceptible of being used as an intoxicating beverage, then its sale is not prohibited by law, and the notes sued on would not be invalid on account of the sale of such bitters." (2) "If the jury believe from the evidence that the plaintiff Dunnam kept his doors open on Sunday for the purpose of obtaining light and air, and not for the purpose of trading, then a casual sale on Sunday would not be a violation of penal law, and an item in the account so sold would not avoid the notes." (3) "If the jury believe from the evidence that the ingredients were necessary to be added to the bitters in question to produce intoxication, and that these other ingredients were separately bought and mixed by the defendant to produce intoxication, the sale of the cordial was not violative of the prohibitory law, and would not invalidate the notes sued on." The defendant separately excepted to the giving of each of these charges, and also separately excepted to the court's refusal to give each of the following charges requested by him: (1) "The court instructs the jury that it is the duty of the jury to examine the books offered in evidence in connection with the almanac to ascertain if any items charged against the defendant were sold on Sunday, and, if they find from the evidence that any item charged in the account was sold on Sunday, then they will find the verdict for the defendant." (2) "If the jury believe from the evidence that the bitters were susceptible of use as a stimulating beverage, then the jury will find for the defendant." (3) "If the jury believe from the evidence that any item in defendant's account was sold on Sunday to defendant, then they will find the verdict for the defendant." (6) "If the jury believe from the evidence that any item in defendant's account was sold him on Sunday, then the jury will find for the defendant, whether the plaintiffs kept open doors at the time of the sale or not." (7) "The court instructs the jury that the defendant is not required to prove his pleas by a preponderance of the evidence."

There were verdict and judgment for the plaintiffs. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

W. R. Oliver and W. S. Cary, for appellant.

Longshore & Beavers and E. S. Lyman, for appellees.

BRICKELL C.J.

Whe...