Kelly v. Sanders

92 So. 424, 207 Ala. 259, 1922 Ala. LEXIS 33

• Court: Supreme Court of Alabama
• Decided: April 6, 1922
• Docket: 4 Div. 978.
• Status: Published

Opinion

ANDERSON, O. J.

The plaintiff sued the defendant for his refusal to accept a beef which he had previously sold him. The plaintiff’s theory was that the beef was good and marketable, and defendant refused to accept the same, not because of its inferior quality, but because he did not need it, and had no room for it. Defendant’s theory was that he did need it, had room for it, and declined to accept the same on the sole ground that it was such an inferior beef as to be unfit for market purposes, and for which plaintiff knew he wanted said beef at the time of the negotiation. The quality of the beef was a material issue in the case, and the trial court did not err in permitting some of the parties to whom plaintiff sold some of the beef, who saw and ate it, from testifying that it was good beef. This was not a forbidden opinion or conclusion, but was a simple fact as to which any ordinary witness can testify.

The trial court erred in not permitting the defendant’s witness to testify that defendant called May over the phone and told him to kill him a beef; that the man who brought him a beef that morning did not bring him a good one. It was at the time stated that defendant offered to prove in connection therewith that this was done in the presence of the plaintiff and at the time defendant refused to accept the beef. This was clearly a part of 'the res gestse, and was relevant, as it tended to contradict the plaintiff and to corroborate the defendant, and does not come under subsequent acts or declarations of a party done or made for the purpose of corroborating his testimony.

The defendant should have likewise been permitted to show that he had sufficient refrigerator or storage capacity to receive the beef, as this related to an existing physical condition, and was contradictory of the plaintiff’s theory that defendant rejected the beef because he was full up and could not receive it.

The defendant had the right to show that lie did not Lave another beef on hand when he refused to take the one tendered by the plaintiff, but we doubt his right to show that he was forced to buy another beef to take its place, and, as the question contained improper matter, we cannot put the trial court in error for sustaining the objection to same.

For the errors above suggested the judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

McClellan, somerville, and Thomas, JJ., concur.