Opinion
4 Div. 847.
April 22, 1920. Rehearing Denied May 27, 1920.
Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.
Farmer, Merrill Farmer, of Dothan, for appellant.
Telephone conversations are admissible. 202 Ala. 367, 80 So. 449; 81 So. 353. The other evidence was admissible. 4 Ency. Dig. Ala. 122. The court should have granted a new trial on the pleadings. 156 Ala. 581, 47 So. 140; 201 Ala. 256, 77 So. 846; 112 Ala. 379, 21 So. 351; 132 Ala. 268, 31 So. 715.
Lee Tompkins, of Dothan, for appellee.
Counsel discuss the various assignments of error, but without citation of authority.
This controversy arose out of a sale of two carloads of peanuts by plaintiff, appellee, to defendant, appellant.
There was no error in the exclusion of the testimony of the witness Hawkins as to the offer of Ramsey, defendant's bookkeeper, by telephone, to pay plaintiff for the peanuts according to stated weights and at stated prices. Defendant's insistence is that this testimony tended to support pleas 2, 3, and 5, and that, however defective these pleas may have been, they were not tested by demurrer, and testimony in support of them should have been received. Plea 2 alleged nothing more than a partial payment, and that the balance due was less than the amount claimed by plaintiff. Of course, the statement by defendant's agent had no tendency of legal account toward the establishment of that plea. The trial court was justified in treating pleas 3 and 5 as an appeal in some sort to the law of tender. In that law an offer to pay is an actual offer. Ramsey's statement by telephone, he being at Dothan, to plaintiff, that defendant would send a check for substantially the amount the latter admitted to be due, was not a tender, nor was it an actual offer to pay. It was merely an expression of readiness or willingness, one or both, to send a check for the amount conceded by defendant to be due; the implication being that plaintiff should receive the check as payment in full. 38 Cyc. 142; McIntyre v. Carver, 2 Watts S. (Pa.) 392, 37 Am. Dec. 519. It was a mere conditional proposition, in the absence of an acceptance, amounting to nothing. Camp v. Simon, 34 Ala. 126. It was not the unconditional offer alleged in the pleas.
The question made the subject of the third assignment of error, referred to in appellant's brief as error No. 2, was but a repetition on defendant's redirect examination of a matter about which the witness had already twice testified. Its allowance in these circumstances was discretionary with the court, and no error can be affirmed of the court's ruling in sustaining plaintiff's objection.
Since defendant sought to be relieved of a part of plaintiff's claim on the ground that it represented dirt, instead of peanuts, and since, under the contract between the parties, whether the jury accepted plaintiff's or defendant's version, defendant could not be required to pay for dirt, neither version going to sustain that proposition, no legal injury was done to the defense by the court's exclusion of the proffered testimony to the effect that the carloads of peanuts in question contained more than an average quantity of dirt. The actual amount of dirt in these carloads was a relevant fact, and defendant had the benefit of testimony as to that — in fact its testimony as to that was not contradicted; but a comparison with average carloads had no legitimate place in the evidence.
There was no error in admitting plaintiff's testimony set out in the seventh assignment of error. This testimony tended in some degree to contradict evidence for defendant to the effect that samples of the peanuts had been taken before they were unloaded, and this shed some light on the question, controverted between the parties, as to the quality of the peanuts and the agreement of the parties in respect thereto.
The court gave the general affirmative charge against defendant's fourth plea, the plea of tender, and refused defendant's requested charge that defendant was entitled to a verdict under its third plea, viz. that defendant had offered to pay the sum which it brought into court. These rulings, and the ruling against the motion for a new trial, which, in the main, depended upon them, were free from error. Plaintiff was entitled to the charge against the plea of tender, because there was no evidence of a production and proffer of the money. Rudulph v. Wagner, 36 Ala. 698. As to the third plea, if that be accepted as intending something different from the plea of tender, the general charge was well refused, for the reason that the evidence tended to show an offer of less than the amount due, upon condition that it be accepted as payment in full. The plea was bad; but, accepting it as stating one of the issues upon which the parties were satisfied to try the cause, it is enough to say of the contention now made with respect to it that it did not allege the conditional offer which the evidence tended to support.
No error appearing, the judgment must be affirmed.
ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur.