Opinion
4 Div. 805.
November 21, 1918.
Appeal from Circuit Court, Barbour County; A. A. McDonald, Special Judge.
McDowell McDowell, of Eufaula, for appellant.
Geo. W. Peach, of Clayton, and A. H. Merrill Sons, of Eufaula, for appellees.
This suit was against J. B. Peake and John Peake, as individuals composing the firm of J. B. Peake Son, and also against the firm of J. B. Peake Son, seeking a recovery for installments due for the purchase price of a refrigerator claimed by plaintiff to have been purchased by John Peake for the firm of J. B. Peake Son. The defense insisted there was no agreement of purchase, and therefore nothing due. Defendant J. B. Peake also insisted that, if there was any such purchase, it was not for the firm of J. B. Peake Son, but for John Peake and one Culpepper for a meat market business with which he was in no way connected, and that the firm of J. B. Peake Son had no occasion for any such purchase. This latter defense, of course, in no manner concerns the defendant John Peake, and, as the verdict of the jury was in favor of the defendants, it is quite clear from this record that the jury found in favor of the defendants upon the theory that there was no agreement of purchase entered into.
J. B. Peake was asked upon direct examination if he knew anything about the meat market business being advertised under the head of J. B. Peake Son, to which plaintiff objected on the ground "the question is immaterial, irrelevant, and incompetent." The same objection was interposed to the question as to whether or not the witness knew that his son John Peake, or the said Culpepper, was in any way using or advertising the meat market business under the name of J. B. Peake Son.
The overruling of these objections is here urged as reversible error.
In view of the fact, as above stated, that the verdict of the jury was evidently based upon the theory there was no liability on the part of the defendants because of no contract having been made, it is clear that the above objections are immaterial and could avail plaintiff nothing on this appeal. The witness was also asked whether or not he received the refrigerator, or accepted the same, or if any one received or accepted the same for him; and objection was interposed upon the ground that it was "immaterial, irrelevant, and incompetent." We think this objection was not tenable.
These are the only questions argued by counsel on this appeal, and it results that we find no reversible error in the record. The judgment will be, accordingly, affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.