Forehand v. White Sewing Machine Co.

SAYRE, J. Action by appellee against appellant for the price of 50 sewing machines. (1,2) It may be conceded that appellee?s interrogatory to the witness Chase did not call for a copy of appellant’s order for the machines on account of which he was being sued; but the order, if genuine, constituted the contract between the parties, and was, of course, relevant and material to the issue of appellant’s liability. It is well settled that only the party asking the question may object to such an answer on the peculiar ground that it is not responsive. So, likewise, the copy exhibited by the witness with his deposition, and purporting to be a copy of the order or contract signed by appellant, was not the best evidence of the document appellee sought to prove. But the testimony having been taken by deposition, appellant had an opportunity to object to the admissibility of the attached copy before going to trial. By suffering appellee to enter upon the trial in reliance upon this evidence, and by withholding his specific objection that this evidence offered was secondary until the deposition was being read, appellant waived the objection on account of its inferior character, which would have been available if taken in due time. — Sowell v. Bank of Brewton, 119 Ala. 92, 24 South. 585. None of the assignments of error based upon the admission of the copy can be sustained. (3,4) The agreement upon which appellant relied in defense showed on its face that it was a contract between appellant and Morehead concerning the sale by the latter for appellant of the 50 machines bought by appellant from appellee. Morehead had acted as agent for appellee in negotiating the sale to appellant; but appellee was not a party to the face of the contract between appellant and Morehead, nor was it made to appear that appellee had any interest in it, or was at all concerned about its performance. If it be assumed, agreeably to appellánt’s testimony, that he did not execute the contract or order upon which appellee relied, and hence that he had a right to rely upon the appearance of Morehead’s general authority, still the latter’s general author-to sell machines for the White Company did not import an authority as agent for the company to peddle them for the account of appellant. The letter which Morehead, long afterwards and [211] at a time when he was not shown to have any authority from appellee, wrote to appellant in reference to the contract which he (Morehead) had undertaken in his own name and behalf to perform did not purport to speak for appellee, nor did it otherwise appear to have any bearing upon the contract, however evidenced, into which the parties before the court had entered. It was properly excluded. — Hill, Fontaine & Co. v. Helton, 80 Ala. 528, 1 South. 340. (5) The questions in respect to the value of the machine were irrelevant to any issue made in the cause. It was not disputed that appellant got the machines, and that he had agreed to pay a fixed price for them. It thus appears that the trial was unaffected by error. Affirmed. Anderson, C. J., and McClellan and Gardner, JJ., concur.