Kramer v. Compton

SIMPSON, J. This suit was brought by the appellee against the appellant, by attachment, the first count in the complaint being the Code form on account due by defendant to the plaintiff, and the second being for goods, etc., sold and advanced to the defendant’s agent. The defendant appeared by attorney, and no pleas appear by the record to have been filed, but the judgment entry states that issue was joined on the pleadings filed, which necessarily means the general issue to the complaint. Although there was no allegation in the second count that the agent was authorized to bind the defendant, or that the goods were advanced to the agent, at the special interest and request of the defendant, yet the only issue raised by the evidence is the question of the liability of the defendant for the acts of the agent. It is not disputed that one Wedemeyer was employed by the defendant to oversee the getting out of staves for the defendant, and having them hauled to the shipping point, but the defendant contends that Wedemeyer was simply employed at a certain price, to attend to that matter, without any authority to purchase any supplies on the defendant’s account, and without being held out as a general agent; while the plaintiff claims that the defendant had authorized him to make the advances to said agent, and charge the same to him, and he relies mainly on a letter which he claims to have received from the defendant, date not given, though from other testimony it appears to be in December, 1907, which letter has been lost, and plaintiff was allowed to state its contents in substance as follows: “Dear Sir: John Knause is no longer my agent, and any debts that he will make in your store, I will no longer be responsible for same. I am notifying you, in order that you may advise him. I am sending W. B. Wedemeyer to take [221] the place of John Knause, and any assistance that you might and can give him will be appreciated by me and paid for by me.” The defendant testifies that said letter merely introduced Wedemeyer, and asked plaintiff to assist him, as he was a stranger in the country. One J. J. Marion was allowed to testify, in behalf of the plaintiff, that he had let one Wingate, who was working under Wedemeyer, have certain goods at Wedemeyers’ request, and that Wedemeyer told him that defendant would pay for the goods, which he afterwards did. Defendant then cross-examined said Marion, at length, in regard to the transaction, and then moved the court to exclude “all the testimony of this witness as to Kramer paying a bill for goods sold by witness,” and the court refused to exclude the evidence. The motion came too late, and the court properly refused to exclude the evidence. The defendant should have objected. to the question and then moved to exclude the answer. A party cannot speculate on what a witness’s testimony will be, and then move to exclude it.—Hudson v. State, 137 Ala. 64, 34 South. 854; Downey v. State, 115 Ala. 109, 22 South. 479; 5 Mayfield’s Dig. p. 419, § 75. The second and third assignments insisted on claim that the court erred in refusing to allow the witness Marion to answer certain questions in regard to what the defendant said about not being under any obligation to pay the Marion debt, and as to what Wingate’s contract was, before defendant paid said debt. If this was error, it was without injury, as the letter of defendant was afterwards admitted in evidence, showing exactly what the defendant did say. There was no error in excluding the statement of the defendant, when on the witness stand, as “to whom he paid the balance”.due by him to Wingate. This was [222] entirely irrelevant to any issue in this case. It is not sought to intercept any money clue by the defendant to Wingate; but the claim is that the defendant is liable himself for the goods sold to Wingate. It is true that the exception to this testimony was not made until after the question was answered, but the rule is that, although a party who fails to make the objection át tbe proper time cannot afterwards claim the right to have the answer excluded, jret the court may, in its discretion, exclude illegal evidence at any time.—Jarvis v. State, 138 Ala. 37, 34 South. 1025; Liner v. State, 124 Ala. 1, 6, 27 South. 438. If there was any'error in excluding the answer of the defendant, as a witness, to the question by defendant’s counsel to the effect that he did not authorize Wedemeyer to contract any bills, it was without injury, as the witness subsequently made the same statement without objection. There was no error in giving charges A and B, at tne request of the plaintiff. While the second count of the complaint would have been subject to demurrer, yet issue was taken on it, and, if it was proved, the plaintiff was entitled to judgment on it. Charge C asserts a correct principle of law, and was properly given. If, under the facts of this case, it was misleading, an explanatory charge could have been given. The judgment of the court is affirmed. Affirmed. Dowdell, C. J., and McClellan and Mayfield, JJ., concur.