Hutchinson v. Gaston

Smith, C. J., delivered the opinion of the court. This is a suit begun in the court of a justice of the peace to recover from the appellant the balance alleged to be due by her, for a mule sold to her by the appellee’s intestate. The case, for the appellee, was proven by one Egger, who stated that he sold the mule to Mrs. Hutchinson for- Gaston, his evidence relative thereto being as follows: “Q. State whether or not you ever had any conversation with Mrs. Hutchinson over the telephone about this transaction. A. Yes, sir. “Q. What Avas it? A. She said she would have a nigger down there and for me to try to treat him right and give him a good trade and try to trade him something that Avould suit him — that was worth the money — I suppose. “Q. State whether or not, Mr. Egger, previous to this trade you had had any conversation with Mrs. Hutchinson about the buying of a mule. A. Yes, sir; I had. “Q. What did she say? (Objected to by the defendant unless it was about this particular mule.) A. (by witness.) The conversation was about the same I had over the telephone Avith her; she just mentioned that she ‘would • have a nigger doAvn there and that he Avould want a mule.’ “Q. State all the conversation you remember — not the substance of it, but Avhat you remember of it. A. That is about all that I remember; she just mentioned that she would have a nigger doAvn there and he would want a mule and to do the best I could for him, of course, she would have the difference to pay. “Q. She said that? A. Yes, sir. . . . “(^. State Avhy you charged this one hundred and eighty-five dollars to Mrs. Hutchinson. (Objected to by the defendant as leading. Objection overruled.) A. Why I charged it to her? [497] “Q. Yes, sir. A. Why, there was ilo one else to charge it to; I had instructions from her and I had to malee some record of it.” The date of this telephone conversation was not given, bnt the charge for the mule was entered by the witness on Gaston’s books on January 31, 1920. The witness further stated that Ex Blevin, a negro tenant of the appellant, came to Gaston’s sales stable, accompanied by a man by the name of Burdine, and delivered to the witness a mule in exchange for another, the amount here sought to be recovered from the appellant being the difference in the value of the two mules. The witness also stated that Burdine managed the appellant’s plantation. But no claim is made that Burdine either represented or had the right to represent the appellant in the transaction, or that either he or Blevins told Egger to charge the difference between the value of the tAVo mules to the appellant. Some time after the mule had been delivered to Blevins, but Avhen does not appear, the witness had a conversation with the appellant as follows: “She said: What are Ave going to do about this mule trade — the negro isn’t making anything;’ and I told her that I didn’t knoAA’ — I said ‘1 don’t know, Mrs. Hutchinson, I haven’t got anything to do Avith it now; you will have to see Mr. Ira L. Gaston, who is the administrator for Mr. Ira T. Gaston’s estate;’ and that is about all the conversation Ave had about it.” For the appellant, Blevins testified to the effect that his trade AA'ith Egger for the mule was made without the knowledge or consent of the appellant, and that the only time lie had spoken to her about trading hig mule was “in the fall of 1919,” more than a year before the trade was made, but Avhetlier the appellant then consented to the trade does not appear from his evidence. According to this Avitness nothing Avas said Avhen the trade Avas made, either by him or by Egger, as to who Avas to pay the difference betAveen the value of the two mules. [498] Gaston died after the alleged sale of the mule and before this suit was brought, because of which fact the court below properly refused to permit the appellant to testify as a witness in her own behalf. Section 1917, Code of 1906 (section 1577, Hemingway’s Code). At the close of the evidence the court below refused to grant an instruction directing the jury to find for the appellant, and granted one instructing the jury to find for the appellee. The appellant’s contentions are: First, that her alleged agreement, if in fact made, was to answer for the debt of another, and therefore cannot be enforced under the statute of frauds for the reason that it was not in writing; and, second, that the evidence is insufficient to show that the alleged promise by her to pay the difference in the value of the mules was in fact made. If the appellant told Egger to make the exchange of the mules and that “she would, of course, have the difference to pay,” the only inference that can be drawn therefrom is that she intended for the credit to be extended direct to her and not simply to guarantee the payment by the “nigger” of the difference in the value of the mules. On the evidence, it was for the jury to say -whether or not Eggerj in fact had the telephone conversation he claims to have had with the appellant, and, if so, whether or not Blevins Avas the “nigger” intended to be therein referred to. Both of the requests for a directed verdict should have been refused. Reversed and remanded.