Jones v. Journey

WALKER, P. J. In connection with independent evidence tending to show that the person who sold to the defendant the horse sued for was authorized by the plaintiff to trade it, it. was competent to prove the acts or declarations of such person in the performance [491] of the agency. Robinson & Co. et al. v. Greene, 148 Ala. 434, 43 South. 797; Martin, Dumee & Co. v. Brown, Shipley & Co., 75 Ala. 447; Jones on Evidence, § 255. If the plaintiff wished to raise the question that such declarations of the alleged agent could not he considered as proof of the fact of agency, he should have asked instructions defining the purpose for which the evidence could, he considered by the jury. The assignment of error based on the exception to the action of the court in sustaining defendant’s objection to the question to the witness Henry Carr on cross-examination cannot be sustained. The question was so framed as to call for proof of a suggestion made by McKinley to the witness to buy the horse from its owner before the. ag’ency was created. That being so the an-SAver to the question might have had no bearing on any issue in the case. Besides, it is not made to appear how the plaintiff could have been prejudiced by the ruling. If the answer had been that McKinley made such a suggestion after he Avas authorized to sell or trade the horse, that fact Avould not have tended to support the contention of the plaintiff that McKinley Avas without authority, as an agent of the plaintiff, to sell or trade the horse. The defense was that the defendant acquired title to the horse sued for by a trade Avith the plaintiff’s authorized agent. Evidence that the trade was in good faith and for full value would tend to sustain the defense. As part of the proof to this end, it Avas not improper to admit evidence of the value of the animal given in exchange. The inquiry as to whether the defendant assumed or supposed that the person with whom he traded Avas the OAvner of the horse, dr was acting as the agent of another, was in reference to a Avholly immaterial mat [492] ter. Whether he understood the fact to be one way or the other, he acquired a good title, if the person he traded with in good faith was either the owner or the authorized agent of the owner. The plaintiff’s witness L. G. Jones testified that McKinley never hired the horse in question. Proof that he claimed that he rented some mules to McKinley at the time he rented this horse to him would tend to contradict that testimony. An inquiry as to his making such claim was, in part at least, the purpose of a question asked the plaintiff on cross-examination. It was not error to overrule the objection to that question. It Avas not made to appear that the matters connected with the renting of the horse by McKinley, in regard to Avhich a question was asked John BoAvie, a witness for the plaintiff, on his redirect examination, had any bearing upon any issue in the case; and it cannot be said that the court was in error in sustaining the objection to that apparently irrelevant inquiry. On the examination in rebuttal of L. G. Jones, a Avitness for the plaintiff,- he testified that he did not have such a conversation Avith McKinley at his house as the latter’s wife had testified to. He was then asked by the counsel for the plaintiff: “What took place when you went to the house?” It is not suggested in the argument of counsel for the appellant that this question could have elicited material testimony, other than a denial of the testimony of Ida McKinley as to the conversation to Avhich she had testified. He had already deposed to this effect. Besides, the question was so framed as to call for anything that took place at any time witness went to the house referred to, whether relating to any matter involved in this suit or not. The court was not bound to permit a question to be ansAVered which on its face [493] did not appear to call for material or relevant testimony. It is not perceived how the inquiry as to whether McKinley did or did not pay the agreed rental for the horse in question could have had any bearing upon the controverted question in the case as to his authority to sell or trade the horse, and the record does not show that the court was in error in excluding proof on that subject. The nineteenth assignment of error cannot be sustained, unless each of the two rulings embraced in it was erroneous. A single assignment of error cannot he supported, if it is bad in part. Brent v. Baldwin, 160 Ala. 635, 49 South. 343. To dispose of that assignment of error, it is enough to say that one of the rulings mentioned in it was free from error. The objection to the question to the witness L. G-. Jones as to entries made in the plaintiff’s account hooks was properly sustained, as the books themselves, not the testimony of the witness as to entries made in them, were the best evidence on the subject of the inquiry. Affirmed. Pelham, J., not sitting.