Merchants' Bank v. Acme Lumber & Manufacturing Co.

MAYFIELD, J. Appellee lumber company sued, appellant bank, on the common counts, for goods and merchandise on account, and on account stated. The basis of the action was that appellant contracted with one Ambrose to erect for it a bank building, Ambrose to furnish all materials, and to do all the work necessary to its construction in accordance with the contract. The appellee, plaintiff below, claims that under a contract Avith Ambrose and an arrangement with appellant bank, it furnished the lumber, or part thereof, for the construction of the building, and that the bank OAves it (the lumber company) for the lumber so furnished. It was ruled by this court on a former appeal of this case (160 Ala. 435, 49 South. 782) that the action would lie, and that the defendant bank, with the consent of Ambrose, could recoup the damages suffered by Ambrose in the breach of the contract to furnish the lumber which Avas to be used in the construction of the bank building. Such pleas were interposed by the defendant, and the case Avas tried upon the general issue and these and other special pleas; and resulted in a judgment for the plaintiff lumber company, from which judgment the defendant bank appeals. According to the theory of the plaintiff and the tendency of its evidence, the bank agreed to pay the bills for lumber furnished by plaintiff to Ambrose and used in the construction of the bank building, when such bills Avere approved or O. K.’d by Ambrose. Plaintiff’s evidence tended to show that the bank insisted or desired that the bills be O. K.’d by Ambrose, so that the [446] bank could keep its account straight with Ambrose; that the bank agreed to make payments at the end of each month on Ambrose’s O. K.; that plaintiff’s agent and Ambrose subsequently went to see the president of the bank, as to the payment of these bills; that at this time the president of the bank agreed that the bank would pay 65 per cent, of the bills when O. K.’d by Ambrose, and would pay as the building progressed, and pay the balance when the building was completed. The evidence of the defendant tended to contradict this, of course. The evidence all showed that the bills, as was claimed, were all O. K.’d by Ambrose; but the bank insists that it was not bound thereby, because Ambrose was not its agent for that purpose and did not represent the bank, in any wise, in the matter. This, of course, depended upon which phase of the evidence the jury should believe; that of the plaintiff or that of the defendant. It is true that Ambrose testified on the trial that he was not the agent of the bank, for this or any other purpose; but this was not conclusive upon the plaintiff lumber company nor upon the jury. Under all the evidence in this case it was a question for the jury whether or not he was the agent for the bank in approving the bills in question. The trial court did not err in declining to exclude the testimony of the witness, Richardson,- the agent for the plaintiff, on his direct examination. . The witness had testified as to the correctness of the account in suit on his direct examination. On the cross he admitted that he did not load or superintend the shipping of the lumber, and that he did not personally know that all of it was delivered or that the account was correct; but that he did, on several occasions, see the lumber on the ground at the bank, and that he could point out, in the building, the material that was furnished by the plain [447] tiff. This was certainly sufficient to carry the question to the jury. The court did not err in allowing the witness Bich-ardson to testify that Ambrose assented to the correctness of the itemized account presented to him by witness, which was the basis of the suit. There was evidence tending to show that the bank had requested that Ambrose O. K. the bills, and that it did not agree to pay until they were so O. K.’d by him, and that this was for the purpose of enabling the. bank to keep its account straight with Ambrose. In ,fact, all the evidence shows that the bills had to be Ó. K.’d by Ambrose, and this was all that the evidence tended to prove. The bank had virtually set up this very fact in some of its pleas. These pleas alleged, in substance, that Ambrose purchased the lumber which is sued for, and that, by reason of delay in the delivery of it, and because of the inferior quality of a large part of that furnished, Am-brose had suffered damages, which damages the bank, by and with the consent of Ambrose, offers to set off or recoup against the recovery sought in the complaint. The bank seeking in this action thus to recoup the damages suffered by Ambrose, his admissions or statements as to the matter in controversy would be admissible against the bank upon this issue, if on.no other. As before stated, however, there was evidence which tended to show that the bank had made Ambrose its agent for the express purpose of approving these particular bills, in order that it could pay the amounts to plaintiff. If this was true, it was wholly immaterial whether he had finished the building, and concluded his contract with the bank, at the time of approving the bills. Finishing the building did not terminate his agency for the purpose of approving, the bills, if the lumber was furnished for, and used by him in, the [448] bank’s building, in accordance with his and the plaintiff’s agreement with the bank. There was no error in giving charge 1, requested by the plaintiff. It is conceded that it states a correct proposition of law, but it is insisted that it was abstract, and that it was therefore error to give it. Counsel differ as to whether it was abstract or not. It is immaterial whether it was so or not; we.can see no possible injury which could have resulted from the giving of it, and in the absence of injury we will not reverse for the giving of a charge merely because it is abstract. The giving of abstract charges is not necessarily reversible error. It was said by McClellan, J., in the case of Goldsmith v. McCafferty, 101 Ala. 663, 670, 15 South. 244, that it is very rare that the giving of an abstract charge requires the reversal of a judgment. But, if the charge is both abstract and misleading, and it is manifest that the jury has been misled by it, to the prejudice of the appellant, the judgment should be reversed. These being the only errors insisted upon, and none reversible appearing, the judgment must be affirmed. Affirmed. Dowdell, O. J., and Simpson and McClellan, JJ., •concur.