Armour Fertilizer Works v. Kinney

SOMERVILLE, J. All of defendant’s special pleas were in legal .effect but denials of plaintiff’s cause of action, and the material matters alleged therein were admissible under the general issue. Hence there was no harm to plaintiff in the overruling of his demurrers to these pleas. So also as to plaintiff’s special replication. It , sets up nothing not available under the general issue, and its elimination by demurrer was not prejudicial. The issue to be determined was a simple question of fact — whether plaintiff’s version of the contract of sale, or defendant’s, was the true one — and this issue seems to have been fully and fairly submitted to the jury. The fact that, after defendant was notified of a shipment at a later day and from a remoter point than specified in the contract, he continued ready and willing to accept delivery up until 2 p. m. on August 16th, if it should arrive by that time, was not in effect a waiver by him of the requirements of the contract, nor did it per se operate as añ estoppel upon his right to reject the shipment if unseasonably shipped and transported. Instructions predicated on those theories of waiver and estoppel were therefore properly refused. Charge 2 was properly refused to plaintiff because it ignores defendant’s version of the contract,’ viz. that the shipment on the day specified should be made from Atlanta, which woüíd very considerably expedite delivery at destination. We see no reason for the refusal of charges 3 and 4, requested by plaintiff, which are predicated on his version of the contract as declared on in the complaint. However, these charges seem to have been fully covered by the general oral charge, and no prejudice could have resulted from their refusal. Charges 1 to 5, given for defendant, are predicated on his testimony as to the terms of the contract, and were properly given. Plaintiff’s agent Sanford, who had handled this transaction with defendant, testified as to the debit items against defendant growing out of the sale, including express freight and storage charges, and also as to the proceeds -of the several resales of parts of the shipment, credited to defendant. Plaintiff then offered in evidence a tabulated written statement of these various items in the form of an account; the witness stating that it showed correctly the account as it stood on plaintiff’s' books. Such a statement of the account would have been admissible in evidence, had it been duly verified by affidavit, and attached to the complaint, with an allegation of that fact in or indorsed upon the complaint, -unless denied by defendant’s sworn plea duly 'filed. Code, § 7666. Or it would have been admissible as a memorandum, in connection with the witness’ testimony that he knew the statement to be correct at the time it was made, but then had no independent recollection of the facts. Acklen’s Ex’r v. Hickman, 63 Ala. 494, 35 Am. Rep. 54. As here offered, this statement of the account was not admissible, and it was properly excluded. Moreover, the best evidence was the book or books showing 'the account as kept by plaintiff. But, apart from this, the jury evidently found for defendant on the main issue in the case, unaffected by any consideration of the exact balance claimed by plaintiff to be due as damages for the breach of the contract. Plaintiff objected to several questions propounded by defendant to the witness Biggers, on cross-examination, and to defendant himself, and moved to exclude the several answers. However, no ground of objection was stated', and, as the testimony elicited was relevant, the trial court cannot be put in error for overruling a general objection. We find no error for reversal, and the judgment will be affirmed. Affirmed. ANDERSON, O. J., and THOMAS and BOULDIN, JJ., concur.