People's Co-operative Ass'n v. Lloyd

STONE, C. J. One of the provisions of the act creating the Selma City. Court makes it our duty, on appeal from that court’s findings on fact, to “review the same without any presumption in favor of the ruling of the court below' on the evidence.” - Sess. Acts 1874-5, pp. 386, 390. This, in ordinary cases, would place this court at a great disadvantage. That court examines witnesses ore tenus, and can observe their manner while testifying. It goes without saying, that much of the credit we accord to oral communications made to us depends on the manner and appearance of the narrator. The witnesses come not before us, but we are left to form our opinions from a cold, written statement of what has been testified to, with a suspicion, amounting almost to conviction, that an accurate portraiture of the testimony as it was given is not before us. This is a new feature in judicial administration; but the novelty, if not anomaly, does not stop here. We may reverse the City Court’s judgment, and render such judgment as we think he should have rendered; and this, without according any weight whatever to his findings. He hears the facts detailed orally, by witnesses examined and cross-examined in his presence, and forms his judgment thereon. But his judgment weighs nothing, and must yield to our judgment, pronounced on an imperfect written statement,of what they did testify before another tribunal. This precise thing the statute requires us to do. All of us know the difference in value between a direct communication, and a second-hand report of it. We have indulged in these reflections, not because they are [390] called out by the facts of. this case. We do not hesitate to say the finding of the City Court was justified — required by the testimony. Plaintiff’s witnesses speak positively, clearly, naturally. Montgomery wrote down the words'as soon as they were uttered and adopted; and those words were after-wards copied in the minutes by his successor, and remained unaltered several weeks, before the inapt words, “to this date,” were added — -not in open meeting — but in some manner not fully explained. Against this, how stands the defendant’s version of the transaction ? Cory, the mover of the resolution, is not examined, and the record fails to inform us why so important a witness was not called. It is contended, however, that the object of the resolution was to disaffirm the contract, and get rid of Lloyd. Why not disaffirm the contract, if this was the object? Why ratify it as a means of rejecting it? Why not repudiate it, and then, if intended, vote compensation to the plaintiff for the time he had served ? The admitted, conditional contract made by Mcllwain and Montgomery with Lloyd, was for a gross term of eight months, ending September 1st. The contract was for that term, or it was no contract, if the testimony be believed. Ratification on the 8th of March, to be binding “to this date,” is not .ratification, but the offer of a new, substituted contract, which could not be binding without Lloyd’s consent. A further view: If the resolution of March 8th was a repudiation of the contract, why was Lloyd allowed to remain in the service afterwards? It is contended, however, that TIall, the new superintendent, offered Lloyd wages at forty or forty-five dollars a month, if he would continue to serve the association, and he refused to be employed. Based on this, it is contended that, inasmuch as Lloyd could thereby have lightened the burden on defendant, his claim to that extent should be abated. It might be sufficient answer to this claim, that ITall positively denies the making of such offer, and thus leaves the disputed fact on the testimony of witness against witness. But, as we understand Lloyd’s testimony, it was at most an offer- by Hall to retain him, if he would consent to a reduction of his wages to that extent. If he had so consented, and remained in the service of the association, this would have operated a modification of the contract, and an abandonment of all claims to higher wages. — Strauss v. Meertieff, 64 Ala. 297; Holloway v. Talbot, 70 Ala. 389. Lloyd was justified in refusing the offer. Affirmed.