American Oak Extract Co. v. Ryan

HARALSON, J. There are two counts in the complaint on a contract, -the same in substance and effect, except that the second is a little fuller in its statements than the preceding one. The case was tried on the general issue to these two counts, the 3d and 4th. 1. On the cross-examination of the plaintiff by the defendant, he stated that his brother had given Judge Russell authority to contract for the wood. This answer, from what appears', was responsive and the defendant was bound by it, if a fact within the knowledge of the witness, and it could not move to exclude it; but, the witness immediately stated, that he knew nothing about -the contract or Russell’s authority except what his brother had- told him. Thereupon the defendant moved to exclude the first statement made by the witness, that his brother had authorized Russell to make a contract with defendant, on the ground that it washear-say. The [345] court refused toexclude.it. If a witness on cross-examination, by inadvertence or mistake, states something as a fact, and he afterwards shows that the matter was not within his knowledge, but rested alone on hearsay, it should be excluded as illegal evidence, on the. motion of him whom it tends to injure, unless he was at fault in calling it out. When one calls for illegal evidence, he cannot, of course, move to exclude it, but when, in answer to a proper question, such evidence is replied, the party examining, whether on the direct or cross, may move to exclude it. The examiner is not experimenting in such an instance. And this rule does not contravene that other one, so well understood, that a party calling out illegal evidence had no right to have it excluded on his motion. There was error in this ruling of the court. 2. The witness, Morris, swore the wood was worth $2.35 on the river bank. He'said that to cord it on the barge was worth 15 cents a cord, and he knew it was worth $2.50 when corded on the barge. Defendant moved to exclude, on the ground of a want of sufficient knowledge of the subject, to render the witness competent to testify to the value of the wood. To render such testimony admissible, it was unnecessary that the witness should have been shown to possess any peculiar skill to qualify him as an expert on the subject. — E. T. V. & G. R. R. Co. v. Watson, 90 Ala. 44; Burks v. Hubbard, 69 Ala. 379; Rawle v. James, 49 Ala. 183. 3. There was error in the first charge given at plaintiffs’ instance. There was no conflict in the evidence that the wood was worth $2.35 on the bank of the river, and $2.50 corded on a barge. But the charge should have been predicated, as to the value of the wood, on the belief of the jury of the evidence as to 'its value. This the court by charge, withdrew from the consideration of the jury. The fault found with the charge, because it used the word judgment, which the jury should find, instead, of verdict is hypercritical. 4. There was no error in charge 2 (3) for plaintiff. It hypothesized the facts averred in the complaint, and instructed the jury if they believed them, tc find for plaintiff. The defendant had not demurred to, but took issue on, the complaint. What could the court do but give it? — Howard v. Taylor, 99 Ala. 450; Oak Extract Co. v. Ryan, 104 Ala. 267. The charge may have [346] hypothesized some things too favorably to defendant, but of this defendant cannot complain. 5. The plea of the general issue denies and puts in issue the truth of the allegations of the complaint. The charge 3 (4) asserts the proposition ' in substance, that it was incumbent on the plaintiff to make out his case as he had alleged it in the complaint; and that, if the contract was other ' and different from that. alleged, it was incumbent on the defendant to show it by a preponderance of the evidence, and in this there was no error of which the defendant can complain. — Vandeventer v. Ford, 60 Ala. 610; Life Asso. of Amer. v. Neville, 72 Ala. 517; B. U. R. Co. v. Hale, 90 Ala. 12. 6. Charge 6 (13) is faulty in the respect that it ignores any notice by plaintiff to defendant to furnish the barge, as he was bound to do under the complaint. Each special count makes such an averment. The fourth count avers, that defendant failed to furnish the barge after he was notified by appellant to do so, and the others, that it failed after it had been requested soto do. 7. Among the great number of charges requested for defendant those numbered 1, 2, 3, 4, 5, 6, 7, assert in substance the same principle, — that if after the wood was placed on the river bank, and until it was burned, the river was so low that the wood could not all be transported on a barge, the verdict must be for the defendant. The issues presented in the complaint, do not cover the question raised in these charges, if the contract between the parties was as there averred. We recall the familiar principle, that no facts are properly admissible in evidence which do not tend to support the averments of the complaint, and no instructions are proper which are not applicable to the issues before the jury. “No matter in avoidance of the allegations of the complaint, or in excuse or justification of the wrongful act imputed to the defendant was within the issue found. All such matters the statute • requires to be especially pleaded. — Code, § 2675.” The defendant cannot, on the issues presented in the complaint before us, defeat the'plaintiff’s cause of action, by an attempt to prove that the contract contained other stipulations relied on to excuse performance; which were not set out in the complaint, and by requesting instructions as to such issues thus attempted to be raised. The plea of the general [347] issue cast on the plaintiff the onus of proving every material allegation of the complaint. It limited the defense to evidence in disproof of them. — Petty v. Dill, 53 Ala. 645; Lunsford v. Walker, 93 Ala. 38; L. & N. R. R. Co. v. Trammell, 93 Ala. 350; Behrman v. Newton, 103 Ala. 525; Finley v. Quirk, 9 Minn. 194. s. c. 86 Am. Dec. 93; Morgan v. Wattles, 69 Ind. 260; 2 Greenl, Ev., § 8. 8. The remaining charges asked by the defendant and refused, though variant in form, fall within the same category of inviting consideration of questions outside the issues; and as asked, their only effect, if given, would have been to confuse and mislead the jury. Besides, the court, all too favorably to defendant, had, in substance, given several of the charges requested, and for that reason might well have declined to repeat them. We recall without repeating what was said in the first five paragraphs of the opinion in this case, when it was here on the former appeal (104 Ala. 274), as applicable to the case now, and as an answer to many of the charges asked for defendant and refused. We are indisposed to pursue an investigation into and consideration of the many questions so industriously and lengthly argued by counsel. Stript of all outside issues, the case seems to be simple, and of easy adjudication. For the errors pointed out, the judgment of the lower court is rever sed. and the cause remanded. Reversed and remanded.