Anniston Lime & Coal Co. v. Lewis

HARALSON, J. 1. The plaintiff being examined in his own behalf, on written interrogatories, was asked : “If you say you sold the Anniston Lime & Coal Company staves and barrel heads, state the representations you made to them, as near as you can recollect, as to the kind and quality of such articles? What was the quality and condition of any such staves or barrel heads? Were they or not split, broken, mildewed, rotten and worthless?” This proof was sought to disprove the facts set up in defendant’s 3d special plea, and the interrogatories were not objected to. The plaintiff replied, that he represented the staves to be second class stock ; that they were all sound second class stock, and were not split, broken, rotten and worthless ; that he had sent the defendants a sample of produce staves at a lower price, and that defendants ordered him to ship what he had on hand of that kind, and that a part of the last car were such produce staves, and were fully as good as the sample ; that he knew, that a great many of tbe produce staves would not do for lime barrels, but defendant got them much cheaper than the others. To the last sentence, which is italicised, the defendants objected for being irrelevant, immaterial and incompetent, and the objection was overruled. It was evidence tending to disprove the allegations of the plea, of the sale of a first rate, merchantable- lot of staves at a sound price, which is the fair inference of the plea. 2. The plaintiff also stated in response to a proper question, “That in second class staves, there is always more or less loss ; but the second class is about one dollar and seventy-five cents cheaper on the thousand ; and at the time I sent the headings and staves to the defendant, I was selling first class staves and headings, at four dollars and seventy-five cents per thousand.” This was equivalent to saying he sold these to defendants at three dollars per thousand. The defendants objected to the evidence which is . quoted above, and separately to each sentence thereof. The court overruled the objections thus severally made to this evidence, and defendant reserved a separate exception to each separate ruling.' This evidence was not subject to the objection interposed, but was relevant and proper, as tending to [539] show the contract between the plaintiff and the defendants, tbe character of the staves sold and their value, and to disprove the plea making defense against his recovery. That he was selling good staves at four dollars and seventy-five cents per thousand, at that time, was evidence tending to show their value at the time in the market; and that a second class article was one dollar and seventy-five cents cheaper by the thousand, tends to show the value of the ones ■ sold. — Johnson v. West, 43 Ala. 689 ; Ward v. Reynolds, 32 Ala. 384; Foster v. Rodgers, 27 Ala. 602; 1 Sedg. on Dam. 586 & notes ; 1 Suth. on Dam. 795-799. 3. Issue was joined on the defendants’ 5th plea for recoupment of damages. The court, in its oral charge to the jury, hypothesized substantially the facts set up in this plea as a basis for instructing them, that on such a state of facts, the defendant was entitled to no damages by way of recoupment. If the plea was bad, a demurrer would have been sustained to it. When issue was joined on it, however, even if a bad plea, and the proofs tended to establish its truth, the court should have submitted the issue and the proof to the jury. The effect of the charge was, to authorize a recovery for plaintiff without regard to this issue, which was error. Allison v. Little, 93 Ala. 150. 4. The court gave a charge as requested by the defendants, and, thereupon, by way of explaining it, added, of its own motion, “The only damage I can see tliat has been sustained by the defendant is the freight it has paid on the worthless staves.” The defendant could not except to the charge, in so far as it assumed that a part of the staves were worthless, — a disputed question in the case,— but, its vice as to the defendant was, that it not only ignores but excludes from the consideration of the jury the proof as made for them by the witness, Cobb, — which proof was admitted without objection, to sustain the plea of defendant for recoupment of damages, that defendant had been damaged by the loss of lime &c., on account of the inferiority and unfitness of the staves furnished by plaintiff, to the amount of from $350. to $500. This qualification of the charge was clearly erroneous. 5. Under the evidence in the cause, the charges asked by the defendant were properly refused. There [540] was conflict in the evidence, and charges 1 and 2, which, assumed there was not, could not have been properly-given. As to the 3d, it is sufficient to say, as has already appeared, there, was evidence tending to show the value of the staves shipped, and that they were worth what the plaintiff charged for them. His evidence tended plainly enough to show their value. For the errors indicated, the judgment of the court below is reversed and the cause remanded. Reversed and remanded.