Lurie v. Kegan-Grace Co.

McCLBLLAN, j. The action is for damages for breach of contract in the refusal by defendant (appellant) to accept goods (denim) sold by plaintiff (appellee) to defendant, f. o. b. Baltimore; the terms being sight draft with bill of lading attached. The dkmages claimed, viz. $872.77, were predicated of the difference between the purchase price and the amount received on resale, together with $122.32 freight charges on the refused goods, paid by plaintiff, for their transportation from Dothan to Baltimore. The verdict was for $694.91. Demurrer to the complaint was not the appropriate method to test its sufficiency with respect to the measures or elements of damages claimed therein. Treadwell v. Tillis, 108 Ala. 262, 18 South. 886; 4 Mich. Ala. Dig. p. 668. The matter of damages recoverable was not in any way efficiently reserved in the trial for review on appeal. It sufficiently appears from the several counts of the complaint that a resale of the refused goods at Baltimore was had, to which point they were reshipped after defendant refused to accept them; also the complaint sufficiently avers defendant’s refusal to accept the goods and to pay for them, neither ‘of which acts could have taken place without notice to or knowledge of the defendant of the conditions precedent to refusal. The general issue alone was pleaded. The plaintiff took the depositions of witnesses in its behalf. On objection of defendant, parts of the answers of the witnesses were ruled • to be inadmissible; the excluded parts being indicated by pencil brackets. Notwithstanding defendant’s seasonable objections, and motion to detach the excluded parts of the depositions, the court permitted the jury to take with them to the jury room these depositions, containing *341 matter held inadmissible; the court advising the jury that the bracketed matter was excluded and not to consider the excluded matter in arriving at their verdict. Consequent upon the considerations and authorities cited in Smith v. State, 142 Ala. 14, 39 South. 329, it must be held for error that the jury was permitted, over defendant’s objection, to take to their deliberations the depositions from which the inadmissible matter was not removed or effectually obliterated. There, through approving quotation, it was said: “Where a deposition is in part incompetent, it cannot be passed to the jury" — citing 6 Ency. PI. & Pr. p. 586, supporting the pronouncement. Whether a deposition or written showing for an absent witness, unaffected with inadmissible matter, should be taken out by the jury is subject to the discretion of the trial court. Smith’s Case, supra; 38 Cyc. p. 1833; Koosa v. Warten, 158 Ala. 496, 48 South. 644; Davis v. Brandon, 200 Ala. 160, 162, 75 South. 90S. In Smith’s Case (supra) it was said: “If the showings and depositions had been carried out by the jury,” as was. the course taken in this instance, “they would not only have had the legal evidence embraced in them, but also that which the court declared was illegal.” The admonitions given the jury by the court did not avert the error, or its effect, committed in passing to the jury, over the defendant’s objection, to be taken out by them, the depositions in which the matter excluded was contained. There was no error in admitting in evidence the correspondence between the attorneys for defendant and the plaintiff or its attorney; the evidence disclosing the existence of that relation to defendant at the time the letters were received by defendant’s attorneys and replies made thereto. Upon the like considerations, 'there was no error in refusing defendant’s requested instructions numbered 3 and 4. With respect to the admissibility of documentary evidence, the rule which requires the best, not secondary, evidence, of the subject of proof is not applicable to writings only collaterally related to the issues in contest. 6 Mich. Ala. Dig. p. 151, § 130. The written or telegraphic communications between these parties, as well as those relating to this sale of denim by plaintiff to defendant, emanating from or addressed to the textile company, were not erroneously admitted in evidence. The subjects of assignments 35 and 38 (defendant’s requests numbered 2 and 5) were substantially covered in the court’s oral instruction of the jury. These questions, not now discussed in briefs if raised below, deserve consideration on any retrial that may occur: First. Whether the defendant’s letter of September 1, 1920, to plaintiff effected to exclusively restrict the basis for defendant’s refusal to accept and pay for the goods to those stated in that letter, viz. business conditions generally and the inactivity of the buyer’s (defendant’s) own plant; in no wise assigning his refusal to receive the goods to defect in respect of quality or character. An affirmative answer to this inquiry, founded in waiver, would seem to be justified by Mechem on Sales, § 1077 and notes, and other authorities noted in 17 Ann. Cas. pp. 63, 64; whereas an important exception to this general rule, referable to the absence of knowledge of other grounds for refusal to perform the contract, recited in Mechem, on the authority of Littlejohn v. Shaw, 159 N. Y. 188, 53 N. E. 810, is stated in 23 R. C. L. pp. 1435, 1436. Second. Whether there was in fact a resale of the goods at Baltimore, within the rule which measures damages in proper cases by the difference between the purchase price of the goods refused by the buyer and the market value at the time of resale. The evidence for plaintiff appears to tend to show that there was, in fact, no resale at Baltimore; the testimony being to the effect the plaintiff could not sell the goods, that it simply “took over” the goods then in plaintiff’s custody or under its control at 20 cents per yard. If there was in fact no resale within the rule stated — an inquiry that certainly could not be answered in the affirmative as a matter of law — and if there was no market value in Baltimore (the place of delivery of the goods to defendant’s agent, the carrier), then the stated rule for the admeasurement of damages would not apply. For the error in permitting the jury to take out the depositions, containing matter excluded, the judgment is reversed, and the cause is remanded. Reversed and remanded. ANDERSON, O. J., and SOMERVILLE and THOMAS, JJ., concur.