Sayre v. Durwood

35 Ala. 247

• Court: Supreme Court of Alabama
• Decided: June 15, 1859
• Status: Published

Opinion

RICE, C. J.

The evidence conduced to show, that the contract on which the plaintiff relied for a recovery, was made in the summer of 1854. The question propounded by the defendant to the witness Roberts, called upon him to state, whether, at a time subsequent to the making of the contract, the defendant “ had in his employment sufficient to do the business of the house.” The matter thus called for is, to say the least of it, prima facie, irrelevant. Its relevancy was not shown, nor offered to be shown. There was no error in sustaining the objection to the question, a part of which called for this irrelevant matter.

The contract relied on by the plaintiff) and set forth in the first count of his complaint, was a contract with Sayre & Eullilove for the plaintiff’s services, “tobe rendered as clerk during the season of 1854-55, from about the 20th November in the year 1854, to about the first day of June in the year 1855, in the grocery-store” of Sayre & Eullilove in the city of Mobile. He avers in that count, that he was ready and willing during all that time to render the services/and that he duly offered to render them. Thei’e was evidence tending to prove the contract; and the plaintiff clearly had the right to prove, not only that he duly offered to render the services at the beginning of the season of 1854-55, but that he was ready and willing during the season to render them. A declaration of readiness and willingness made by him, either to Sayre or to Eullilove, in the city of Mobile, during the season, is, prima facie, relevant for the purpose of showing his readiness and willingness at the time of such declaration. The declaration of the plaintiff to Eullilove, called for by the first part of the question proposed to the witness Stark, was, in substance, a declaration to Eullilove of the plaintiff’s readiness and willingness to render the services; and was, therefore, admissible. The declaration thus called for seems to us to amount, in substance, to the following:' “I am ready and willing to serve Sayre & Eullilove, if they want my services; if they do not want them, then I am ready to compromise on the terms I here now propose.” That declai’ation may be very weak evidence; still, as it is relevant, and as the objection was to the whole question, and not to part only of it, there was no error in overruling the objection. — McCargo v. Crutcher, 27 Ala. 171; Magee v. The State, at the present term.

Judgment affirmed.

Note by Kepob,ter.

After the delivery of the foregoing opinion, on petition for a rehearing by the appellant’s counsel, the following opinion was pronounced:

Per Curiam.

We adhere to the views expressed in the foregoing opinion. The question propounded to the witness Stark was not objected to as leading. Besides, it is in the discretion of the primary court to permit a leading question to be put by a party to his own witness, and its action in this regard cannot be revised on error. — Blevins v. Pope, 7 Ala. 371; Watson v. Anderson, 11 Ala. 45. It is clear that the objection of the defendant was to the entire question; and as a part of the question called for legal evidence, the court did not err in overruling the objection. In like manner, the motion made was to exclude the whole answer, although the reason upon which it was founded, applied only to a particular part of the answer.