Beall Bros. v. Johnstone

SHARPE, J. On December 3, 1900, plaintiffs, as commission merchants, had stored in Montgomery 366 bales of cotton consigned to them by defendants, and had also bills of lading for 124 other bales of cotton defendants shipped to them from Luverne, Alabama, but which had not reached Montgomery. On that day plaintiffs by telegram and letter reported to defendants that they [341] bad sold tbe 490 bales of which they so had control at 9-1 cents per pound. There is evidence tending to show that on December 6, 1900, one of plaintiffs’ firm reported in person to one of the defendants’ firm that the whole amount of 490 bales had been sold. In a letter dated December 6, 1900, plaintiffs wrote, defendants to effect that the 124 bales represented by the bills of lading referred to, were not included in the sale of December 3, of that year, for the reason that they had not then reached Montgomery, and that, therefore, plaintiffs in making up the 490 bales sold, had substituted for the 124 bales, cotton other than the defendants, and that this was done, was testified to by witnesses for plaintiffs. There was evidence tending further to show that in correspondence following plaintiffs’ last mentioned letter, defendants claimed credit for the reported price of the whole amount of their cotton; also, that on January 30, 1901, they wrote plaintiffs inquiring what offer they could get for cotton designated in the letter, by marks identical with those of the 124 bales. On March 18th, 1901, plaintiffs reported to defendants that in that month those bales were sold at the price of 8J cents per pound. To this report defendants replied by letter in which they referred to the report of sale made in the previous December and insisted on receiving credit according to the higher price then reported as having been obtained. Whether they were entitled to such credit was on the trial the question in dispute. At plaintiffs’ written request the court charged: “If the jury believe the evidence, they must find for the plaintiffs under the third count of the complaint and assess the damages at the amount of the account of March 18th, 1901, together with interest thereon from the time said account was presented to defendants by plaintiffs.” By this charge the court invaded the province of the jury. Though the witnesses whose testimony negatived the sale in December, 1900, of the 124 bales, were not directly contradicted on the trial, yet the reports first made by plaintiffs of that sale, amounted to admissions, such as might have afforded an inference adverse to that testimony. When conclusions differently affecting the [342] results of a suit may be drawn from the evidence as a whole, a charge so directing the verdict should not be given though the evidence be not in direct conflict.—Ala. Gold Life Ins. Co. v. Mobile, etc. Ins. Co., 81 Ala. 329; U. S. Life Ins. Co. v. Lesser, 126 Ala. 568, 588; 1 Brick Dig. 335, § 4; Blashfield’s Instructions to Juries, § 5. The questions calling on J. W. Beal to explain the defendants’ letter of January 30th, 1901, and referred to in the first and second assignments of error, could have been answered as well by illegal as by legal testimony and were, therefore, too general. For the error pointed out the judgment will be reversed and the cause remanded. Reversed and remanded.