Lundie v. Cosper

CHILTON, J.- This was an action of assumpsit, brought by Cosper against Lundie, to recover upon a contract, by which Cosper undertook to haul from Atlanta, Georgia, five thousand five hundred pounds of goods, wares and merchandize, to the store of Lundie, in Randolph county, at the price of one dollar per hundred pounds. There was a" verdict and judgment for the plaintiff in the court below. It appears from the bill of exceptions, that there was evidence conducing to prove that Lundie, having goods, &c., at Atlanta, employed Cosper to haul the same at one dollar per one hundred pounds, and that one of the terms of the contract was, that the latter should start with his wagons for the [126] goods on. Sunday after tbe contract was made, but that be failed to start either on that day or the succeeding day; that he, however, started on the Tuesday following, and when he arrived at Atlanta was informed by the receiving and forwarding agent at that place, that Lundie had no goods there, and that they had been forwarded to him ten days previous to that time. This appears to have been done contrary to the instructions of Lundie, and on the agent’s own responsibility. What the agent said, as to the goods having been shipped ten days before they were called for by Cosper, was objected to by the plaintiff in error, but allowed by the court. The jury were instructed, that if Cosper agreed to start on a particular day, and did not do it, but did start on a day subsequent, and that if the goods had been sent off by the agent, so that the plaintiff could not have obtained them by starting at the time agreed on, the defendant would be liable to the plaintiff for such damages as he had sustained by not obtaining the goods to haul, &c. We are of opinion that the court mistook the law, both in the admission of the declaration of the agent, or warehouse man, that the goods had been shipped ten days before, and in the charge given to the jury. The agent’s admission, or declaration, related to a past fact, with which it had no connection, was not made in pursuance of any authority from the constituent, nor connected with any authorized act as explanatory of it, so as to constitute part of the res gestae. 1 Greenl. Ev. § 113; Williams v. Hackelford, 16 Ala. Rep. 318; 24 Eng. C. L. Rep. 112; 5 ib. 454; 17 ib. 133; 24 ib. 353; 28 ib. 273. In this case, the agent’s reply to the party presenting the order for the goods, that there were none there belonging to Lundie, was admissible ; for that was apart of the transaction, and necessary in. order to show his failure to comply with the order of the-principal; but that portion of his declarations, relating to a transaction which had taken place ten days before, is not evidence to prove the past fact to which they relate. They constitute hearsay evidence merely, and as such, were improperly received by the court below. The charge qí the court cannot be supported, because it [127] assumes that tbe plaintiff below was justified in violating bis contract to start on a particular day, by reason of tbe removal, or previous shipment, of tbe goods of Lundie, wben it appears tbat be was not informed of sucb shipment, and could not, therefore, have made it tbe ground of bis noncompliance, and wben, if he bad started with bis wagons on tbe day agreed upon, non constat, Lundie might have procured freight. As we understand tbe contract, Lundie was to furnish five thousand five hundred pounds 'freight, to be hauled by tbe plaintiff from Atlanta to defendant’s bouse, in Randolph county, and this freight was to consist of goods, wares and merchandize. Lundie was not bound to furnish tbe goods which be bad bought at Charleston, or any other designated goods which Cosper was to freight, but he could have purchased them on the day of the arrival of the wagons, and had them ready for shipment, and thus have complied with his contract. So that it is clear, the previous shipment of the goods, even had the fact been known to Cosper, would not have justified a violation, on his part, of the contract. We cannot judicially know that Lundie would not have had the amount of freight agreed on at Atlanta, had Cosper started on the day he agreed to start for it; and if the contract was, as the charge assumes, and as the evidence conduced to prove, that Cosper was to start for it on Sunday, and he refused to start until Tuesday, he was the first to violate the contract, and this justified Lundie in abandoning it on his part. See Greene v. Linton, 7 Por. 133; Martin v. Chapman, 6 Por. 344; Davis v. Wade, 4 Ala. Pep. 208; Pharr & Beck v. Batchelor, 3 Ala. Rep. 237. These views are sufficient to guide the primary court in the future progress of the cause, and show that the judgment must be reversed and the cause remanded.