Rodgers v. Crook

MoCLELLAN, J. — We can not see that the fact that Rodgers sold his farm after the transaction between him and Crook, the defendant, with reference to the former’s herd of Jersey cattle, throws any light upon the inquiry as to whether that transaction was a sale or a bailment. As we understand the evidence, it shows that while the contemplated sale of the farm depended upon plaintiff’s making some disposition of the cattle, it did not depend on his making a sale of them, but to the contrary a bailment of them, such as defendant’s evidence tends to show, would equally as well have subserved plaintiff’s purposes with respect to the farm. It can hot be said, therefore, that the [725] fact of the subsequent sale of the farm tends in any degree to show a sale instead of a bailment of the cattle; and evidence of the fact was properly excluded. 2. The fact that a writing has been negligently destroyed by the party who offers its contents in evidence affords no ground for the exclusion of his testimony of such contents. And if the rule were otherwise- we can not say from the evidence here, that Crook, under the circumstances, negligently destroyed the letter from Bodgers to Harris, the contents of which he was allowed to depose to. Moreover the declarations of Bodgers testified to by Crook as constituting the contents of that letter were collateral to the issues in the case, and were competent without reference to the existence vel non of the letter itself or the manner of its destruction. — East v. Pace, 57 Ala. 521; Street v. Nelson, 67 Ala. 504; Winslow v. State, 76 Ala. 42; Smith v. Dinkelspeil, 91 Ala. 528. And, further, the action of the court in admitting this testimony against plaintiff’s objection may be sustained on the consideration that the grounds of the objection were not stated as required by a rule of practice adopted by this court, April 13, 1891, and published in the 90th volume of Beports. 3. Evidence tending to show that “unfair methods” were resorted to by the defendant in affecting sales of Jersey cattle did not in our opinion throw any light on the issue as to whether he had purchased these cattle from the plaintiff, and was therefore properly excluded. 4. The court did not err in refusing to give charges 3, 4 and 6 requested by the plaintiff. They were invasive of the province of the jury. If Crook meant by the proposition hypothesized in these charges that he would pay Bodgers $1,000, with interest, for the herd of cattle, and the latter accepted the proposition, and the cattle had been or were afterwards delivered to the former, this, of course, was a sale. But if he meant only that he would see to it — not that he would pay Bodgers that sum — but that Bodgers should receive that sum from the sales of cattle then, or soon thereafter to be, in his, Crook’s, possession as Bodger’s bailee, that, in other words, he would “guarantee” that Bodgers’ cattle should fetch him that sum, it was not a'sale. Whether he meant the one or the other of these things is not apparent from the facts hypothesized in these instructions; and it was therefore necessarily with the jury to determine his intent from all the circumstances of the case. The charges requested would have taken this inquiry from the jury, and hence'they were properly refused. [726] 5. If the jury had found that Crook’s intention was merely to guaranty a certain price to Bodgers for his cattle, that such was the contract, and that this undertaking was supported by a consideration, plaintiff might have recovered on that alone. But no question is presented here with reference to that aspect of the facts, and we suppose if any such issue was made on the trial below it was properly submitted to the jury. Affirmed.