Louisville Jeans Clothing Co. v. Lischkoff

HARALSON, J. 1. Lischkoff, the defendant in attachment, being examined in his own behalf, testified that the goods levied on and sold, were worth in the market $7,000. On cross-examination he was asked, “Did not the goods cost you, laid down here, 33-3- per cent, off from $7,000?” The court properly refused to allow the question answered. What the goods cost, at some indefinite time in the past, could not fairly be looked to, as determining their present market value. Sometimes the market value of an article of merchandise in a given market is less than cost, and oftener more. The value .is variable. “Probable data for the [141] assessment of damages should he sufficiently uniform in their nature and working, as to have acquired the qualities at least of a general rule. — Adams v. Thornton, 82 Ala. 263; 1 Sedg. on Dam. §§ 244, 245. The current market value of-merchandise at a given time and placo is a matter of fact, which may be proved like any other fact. — 1 Suth. on Dam. § 445. The witness di I not, testily, as he seems to have done on another bran>-h of this case on a former appeal, that the market value of the goods was their cost, with 33i percent, added. — Little v. Lischkoff, 98 Ala. 324. Wo consider the mso as it is now-presented . For like reasons, there was no error in not allowing defendant to ask thD witness, respecting sales he hid been making to certain parties for more than a year lie-fore, if he was making a profit of SSi per cmt. on-the goods so sold. He might or might not have made such a profit on the particular goods sold, and tins would have been no fair criterion of the present value of the goods h-vied on. Besides, it was not shown that the goods sold to these parties were of the same class as the ones attached. 2. The motion to exclude the evidence of W. F. Fitts, Sr., as to the value of the goods, as for the objections raised to its admissibility, was properly overruled. To render such testimony admissible, it was unnecessary that he should have been shown to possess any peculiar skill to qualify him as an expert; on the subject. —East Tennessee, Virginia & Georgia R. R. Co. v. Watson, 90 Ala 44; Burks v. Hubbard, 69 Ala. 380. 3. It does not appear in the abstract, by any direct statement, that W. C. Fitts, as attorney for appellants, sued out the attachment for them, but it is fairly infer-able therefrom, and from the argument of counsel for appellants, that he did do so. If said attorney indulged maice, vexation or wantonness in the premises, his principals, the appellants, would not be responsible for it., unless they authorized or participated in it, which authorization or participation was necessary to be proved by defendant, and not inferred from the mere relation of principal anti agent. There is no evidence lure of any such authority or participation by appellants. In the absence of such proof, the conversations had by him with W. F. and J. H. Fitts, previous [142] to suing out tlio attachment, in reference to the disposition by plaintiff of his property, were not admissible against appellants, certainly, as ground for vindictive or exemplary damages. The objection to their introduction, and the ground for the after motion to exclude them, was, that they were immaterial, irrelevant and illegal. The objection did not refer to the admissibility of the evidence as touching vindictive or exemplary damages, but was interposed to its relevancy for any purpose. The suit is on the attachment boncl. There appears to be a count for the wrongful, as well as for the vexatious suing out of the process. In such case, it is well settled, that the relation of principal and agent, when there is no evidence to connect the principal with the transaction, xther than the fact that the agent sued out the process, fastens a liability on the principal for actual damages, if the writ be wrongful; and in this phase of the case, the evidence was clearly admissible.—Jackson v. Smith, 75 Ala. 102, and authorities there cited; Montgomey & Eufaula R. R. Co. v. Chambers, 79 Ala. 345. 4. The defendant examined one Friecler, who testified to facts tending to show that plaintiff had fraudulently disposed of his stock of goods. On cross-examination by plaintiff, he testified to certain statements made to one Dersliide, collateral and really irrelevant to the issue, and which did not affect his credit in the case. If he had answered every question as plaintiff would have desired, as most favorable to him, it does not appear that it could have influenced the jury one way or the other. It was not competent for plaintiff to introduce a witness afterwards to contradict him as to such collateral and irrelevant statements, and, in allowing this to be done, the court erred.—2 Brick. Dig. 549, §§ 125, 126; Amos v. The State, 96 Ala. 120. For this error the judgment of the court below is reversed. Revei’sed and remanded.