Opinion
6 Div. 864.
April 14, 1927. Rehearing Denied June 2, 1927.
Appeal from Circuit Court, Walker County; R. L. Blanton, Judge.
J. J. Ray and R. A. Cooner, both of Jasper, for appellant.
Counsel argue for error in the questions raised and treated, but without citing authorities.
J. D. Acuff and J. M. Pennington, both of Jasper, for appellee.
Counsel discuss the questions raised, but cite no authorities.
The first appeal on judgment granting a new trial is reported as Bevill v. Wilkins, 20 Ala. App. 510, 103 So. 306.
The contract, made in the fall of 1921 or spring of 1922, by W. D. Wilkins with Bowman, to cut, load, and saw lumber and "put it on the sticks," at a given price per thousand, was within the pleadings and issues of fact tried between said Wilkins as plaintiff and Herman Bevill as defendant. That evidence was necessary and explanatory under the issues of fact to be tried — the indebtedness vel non of defendant Bevill to Wilkins. The witness was allowed to testify that Bevill came to see plaintiff "about taking up the debt that Bowman owed Bevill" in "lumber and charging it to Bowman," which offer was declined, and that about two months thereafter witness identified 2,000 feet of plaintiff's lumber "at Bevill's place" that witness had marked a "few days before at the mill"; that plaintiff "did all of the selling" of his lumber, and Bowman was "sawing and running the mill." This witness was asked on cross-examination, "Can you give any idea, if you can do so, of the amount of lumber that you saw at Bevill's place with your mark on it that was piled up?" and answered as follows:
"While there wasn't but just a piece or two with a mark on it, but in the pile there must have been about a couple of thousand feet. Now in that building I don't know whether that was Walker County Lumber Company built in the building or not. I couldn't say whether the lumber came from the building or not. It was new, just under construction. There was a garage he was building there. It looked just like a garage. At the time he came to see me and my brother, I don't know whether he said he wanted to build a garage, but he said he wanted about $200 worth and charge it to Mr. Bowman. At the time I saw the lumber down there it was pretty close to the garage. I don't think the top was on the garage.
"Was the balance of the lumber there that you could recognize suitable to complete that building? To the best of my recollection I believe it was."
The other evidence tended to show that Bevill had gotten from said mill about 10,526 feet of lumber, and that it was worth about $20.
Defendant's evidence tended to show that Bowman had authority from Wilkins "to sell lumber for him (Wilkins) and collect for it, * * * for the lumber"; that he sold to all who applied therefor, including said Bevill; that, as agent of Wilkins, he sold to said party (and others or Myers, Cunningham, Bob Key) 1,006 feet; that he reported to Wilkins, and the latter asked him to hold up on outside sales; that he sold defendant 2,000 feet of witness' "individual lumber" that he had acquired by sawing "on the halves" with Mr. Bill Miller and Hester NeSmith; that he and Wilkins had mutual accounts.
It was competent to show other sales of lumber to different parties to illustrate the conduct of these parties and shed light upon the testimony tending to give Bowman the right to sell and account, and the alleged revocation of that authority by plaintiff. At least, the rulings were not prejudicial to defendant. However, it was immaterial to show by Myers what became of the lumber that he or his brother-in-law purchased of Bowman. There was no error in adverse ruling to defendant as to witness Myers selling timber to Bowman "direct." The witness had stated the fact of his sale of "some timber just before he moved from there," and "could not say what year it was," and could not tell when Bowman left there or how long before that time he sold the timber to Bowman.
The question sought to be propounded by defendant, Herman Bevill, as witness in his own behalf, was subject to objection as a conclusion as indicated by the court. The objectionable feature was not eliminated by a renewal of that part of the question, "Now what did you tell Mr. Wilkins?" The court was not required to separate. Lester v. Jacobs, 212 Ala. 614, 103 So. 682.
There was no error in allowing the plaintiff to testify that Bevill did not tell him, in the conversation indicated, "that Bowman had let him have the Miller lumber," or claimed such to have been the fact, or that he was so informed by Bevill before the first trial. It was in the nature of a guilty silence at a time when he should have spoken, if such was the fact. Ivy v. Hood, 202 Ala. 121, 79 So. 587. The answer that he was informed "by different parties that he (Bowman) was selling lumber over there to Tom, Dick, and Harry — anybody that comes along" — and that witness, the plaintiff, "investigated it," and such report was limited by the court to the fact of permission vel non by the plaintiff of Bowman's right to sell lumber sawed at his mill. The witness concluded by saying he investigated and forbade him making "any more sales." It was without error or limit.
An agent has no right to pay his personal debts with properties of his principal. There was no tendency of evidence of such authority. Plaintiff's charges Nos. 5, 6, and X were properly given.
If there is a scintilla of evidence or reasonable inference to be drawn contrary to the affirmative instruction sought, the same should be refused. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135. A jury question was presented under count 4 of the complaint. There was evidence of mutual accounts between plaintiff and Bowman, and their contractual relations were necessary to a full understanding and ascertainment of the question of indebtedness vel non of the defendant purchasing lumber of Bowman. The several affirmative instructions requested by the defendant were properly refused.
Charge 10, refused to the defendant, omitted the word "satisfied" after the words "further reasonably" and for such reason the trial court was justified in its refusal.
Refused charge 8 was in the following words:
"The court charges the jury that, if you are reasonably satisfied from the evidence that Bowman had authority to sell the lumber of Wilkins and that he sold the lumber in the exercise of such authority, then defendant would not be liable for converting the lumber, nor for wrongfully taking the lumber, and could not recover in that event under either counts 1 or 2 of the complaint."
Count 1 was for the conversion, and count 2 was for the wrongful taking.
Refused charges 7 and 8 pretermit the tendency of the evidence that Bevill knew the lumber belonged to Wilkins, and that he was purchasing and receiving the lumber in payment of Bowman's debt to the defendant, and this Wilkins has refused to authorize. It was the nature of the sale and payment that authorized submission to the jury under a phase of the evidence as applicable to counts 1 and 2.
We have carefully examined the evidence and grounds of the motion and find no error of ruling by the trial court.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BROWN, JJ., concur.