Martin, Dumee & Co. v. Brown, Shipley & Co.

BRICKELL, C. J. -We can not concur in the argument of the counsel for the appellants, that the act of the General Assembly, approved January 25th, 1879, entitled “An act to provide the mode of procedure in cases in -which the claim of recoupment of damages is interposed.” (Pamphlet Acts, 1878-79,p. 154), adds to or enlarges the character of claims or demands which form proper matter of recoupment. Certainly, the act 'does not admit of a construction which will authorize the defendant, in an action ex contractu, to interpose a claim for damages, because of a libel published, or of slander spoken by the plaintiff concerning him, though the libel or slander may relate to the contract, or to its subject447 matter, or breach. A statute which would work a change so radical in settled laws, introduce into a suit such a multiplicity and diversity of issues, perplexing and confusing to juries, ought to be clearly and unambiguously expressed. When the act is compared, as it must be, with the prior state of the law, the only change it introduces is, that if the damages the defendant has the right to recoup, are found to exceed the amount of the plaintiff’s demand, he shall be entitled to a judgment for the excess; assimilating the procedure upon a plea of recoupment to that which has long prevailed by statute on the kindred plea of set-off.—Hatchett v. Gibson, 13 Ala. 587; Batterman v. Pierce, 3 Hill (N. Y.), 171. The pleas of recoupment were of matters wholly foreign, and incapable of being introduced into the suit. The circuit court, ex mero motu, could have properly ordered them stricken from the file.—Johnson v. McLaughlin, 9 Ala. 551. A notarial protest of a bill of exchange for non-acceptance, or for non-payment, usually states the name and place of residence of the notary; that he was duly qualified; the time, manner, and place that he made demand of the acceptance, or of the payment of the bill; describing or identifying, usually by reference to a copy written upon the reverse of the certificate, the names of the parties of whom the demand was made, the refusal, and the name of the party at whose request acceptance or payment was demanded. It is not unusual now to embody in the protest a statement of the parties notified, or to embody such statement in a separate certificate. But it is only by statute the statement is evidence of the fact of notice. At common law, it was not accepted as evidence of that fact; “ and it is not an essential part of the protest, for notice may be proved otherwise, though the statute makes the certificate of the notary competent evidence of it.”—Rives v. Parmley, 18 Ala. 256. There was no error in the admission of the notarial protest. The originals of the several letters, copies of which were produced and proved, were in a foreign country, without- the jurisdiction of the court; and secondary evidence of their contents, though it had been verbal, was admissible. — 1 Whart. Ev. § 130. The general mile is, that the fact of agency must be shown before the acts, or the declarations, or admissions of the agent will be received as evidence against the principal. But, if the fact of agency rests in parol, or is to be inferred from the conduct of the principal, and there be evidence tending to show the agency, the acts or declarations of the agent are admissible in evidence, and the jury must determine the fact of agency vel non.—Gimon v. Terrell, 38 Ala. 208; McClung v. Spots [448] wood, 19 Ala. 165; Bank of Montgomery v. Plannett, 37 Ala. 222. The bill of exceptions expressly recites, that there was evidence tending to show that Vernon was the agent of the appellants. The evidence in reference to the state of the cotton market in Liverpool, when the cotton arrived there, or as to the quality of the cotton, or its value in Mobile at the time of its purchase, seems to us wholly irrelevant. It may be conceded that the appellees were bound to the exercise of reasonable diligence in making sales of the cotton, after its arrival in Liverpool, and there was a refusal by the drawees to accept the bill ; and if there had been -unreasonable delay or negligence, that they would have been liable for any loss resulting to the appellants. But there was a want of evidence tending to show such delay or negligence, and in its absence all inquiry as to the state of the market was irrelevant; as was all evidence as to the quality of the cotton, unless there had been evidence that it was sold by the plaintiffs as of a different or inferior quality. While the court should with care guard against the exclusion of evidence, however slight or weak it may seem, which has a tendency to establish any material fact, it should with equal care guard against the introduction of evidence which is irrelevant — which does not directly tend to the proof or disproof of a material fact.—State v. Wisdom, 8 Port. 511; Governor v. Campbell, 17 Ala. 566. Notice of the dishonor of a bill of exchange, foreign or domestic, may be given in writing, or may be given verbally. The form of notice is not material; all that is necessary is, that within a reasonable time after dishonor, the party liable and intended to be charged should be apprised of the dishonor, and that he is looked to for payment. — Byles on Bills, 412. True, as is often said in the books, it is more prudent to give the notice in writing, because thereby the evidence of it will be the better preserved, in the event the fact becomes matter of dispute. But this is far from saying that notice in writing is indispensable. — Wade on Law of Notice, § 831. There was no error in the admission of evidence that verbal notice of the dishonor of the bill was given to the defendants. The rule of practice has long been settled, that a charge requested, though it may state a correct legal proposition, is properly refused, if it is based, in part, or in the whole, upon a state of facts of which there does not appear to have been evidence. Such a charge is abstract. It is not necessary to consider separately the several instructions requested • by the appellants. Such as could in any event be regarded as stating correct legal propositions, are obnoxious to this objection. We find no error in the record, and the judgment must be affirmed.