WILSON COTTON CO. v. LOUISVILLE of the injury, since the injury was caused | giving the peremptory charge to find for the by deceased coming in contact with another defendants is also reversed, and the cause wire, and that according to the allegations remanded for a new trial as indicated. of the declaration the wires of all of the defendants had come in contact one with another, so that the injuries would have occurred, whether the wire of the Home Telephone Company had come in contact with the highpower wire or not. Appellants also assign as error the granting of the peremptory instruction for the other three defendants, since it was shown by witness Foster that some of the wires of the Home Telephone Company attached to the top of a pole on which there was a fire alarm box, the wires of which came through an iron pipe to the ground, had come in contact with the high potential wires of the Traction Company. Torrey & Logan, for appellants. Stevens, Stevens & Cook, Harris & Willing, T. Brady, Jr., and Sullivan & Tally, for appellees. WHITFIELD, C. J. The demurrer of the Home Telephone Company to the amended declaration should manifestly have been overruled. The averments of that declaration, when the difficulty of locating the responsible party is held in mind in this tangled web of facts, and especially when the death is due to the mysterious and still largely unknown force of electricity, sufficiently stated a cause of action, so far as the declaration is concerned. The learned counsel for the appellants concede in their brief that they have made no case against the Cumberland Telephone & Telegraph Company. As to the two remaining defendants, the city of Hattiesburg and the Traction Company, we think the evidence was sufficient to take the case to the jury, looking at the whole evidence and giving the evidence its proper weight, especially the testimony of the witness Foster. It was peculiarly a case, under all the circumstances, for solution by the jury. It is perhaps fair to say that on this record a stronger case is made against the city of Hattiesburg than against the Traction Company; but whether one or the other is liable, or whether either is liable, should be left to the jury to say on the testlmony. The action of the court below was correct on this record with regard to that ground of the motion for a new trial setting up the newly discovered evidence of the witness Coll. Due diligence was not shown in ascertaining this testimony. Since there must be a new trial, we forbear any further comment. against the Louisville Cotton Oil Company. A Action by the Wilson Cotton Oil Company peremptory instruction was given to find for defendant. From a judgment in defendant's favor, plaintiff appeals. Reversed and remanded. Plaintiff brought an action to recover an alleged balance due for crude oil shipped under contract. The plea of the defendant set up the inferior quality of the oil, in that it did not from the contract price was made on this accome up to specifications, and that a deduction count. After all the evidence for the plaintiff was in, the court excluded same and gave a peremptory instruction to find for defendant; and from a judgment thereon this appeal is prosecuted. A. M. Pepper, for appellant. McWillie & MAYES, J. The record in this case is by no means clear, but after giving it the closest attention it is our judgment that the defendants were not entitled to a peremptory instruction. Reversed and remanded. JORDAN 1. AUSTIN. (161 Ala. 585) (Supreme Court of Alabama. June 17, 1909.) 1. TRIAL (§ 122*)-CONDUCT OF TRIAL-INPROPER ARGUMENT. In an action by the seller for the price of a horse, where the defense was breach of a warranty that the horse would work anywhere, and defendant testified that certain persons were working with him when he tried to work the horse unsuccessfully, but did not state that they saw him make the attempt, it was improper for plaintiff's counsel to ask in his argument why defendant did not have at the trial the persons who worked for him and saw him try to work the horse. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 299; Dec. Dig. § 122.*] 2. EVIDENCE (8 75*)- PRESUMPTIONS — EVI DENCE WITHHELD. - There can be no unfavorable inference against a party failing to produce his wife as a witness to a fact, where he and his daughter had both testified thereto, as the wife's testimony would be merely cumulative. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 97; Dec. Dig. § 77.*] 4. APPEAL AND ERROR (§ 1060*)-REVIEWCONDUCT OF TRIAL-ARGUMENT OF COUN The result is that the judgment of the court below, so far as the Cumberland Telephone & Telegraph Company is concerned, is affirmed, the judgment of the court below in sustaining the demurrer of the Home Telephone Company to the amended declaration It was prejudicial error not to sustain obis reversed, and the action of the court injection to counsel's argument commenting on SEL. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 1060.*] 5. SALES (§ 358*)—ACTION—ADMISSIBILITY OF EVIDENCE. In an action by the seller on a note given for a horse, where defendant defended on the ground of a breach of warranty and testified that he had written plaintiff complaining of the horse, offering to return it and claimed a rescission, plaintiff could show that he had written defendant demanding payment of the note and had received no reply, since such evidence contradicted defendant's contention. [Ed. Note.-For other cases, see Sales, Dec. Dig. § 358.*] 6. EVIDENCE (8 185*)-SECONDARY EVIDENCE CONTENTS OF LETTERS-PREDICATE. Where plaintiff testified to addressing and mailing letters to defendant, a sufficient predicate was laid for testimony of their contents, without proving notice to defendant to produce them, where he denied having received them. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 642-660; Dec. Dig. § 185.*] 7. SALES (§ 358*)-ACTIONS - ADMISSIBILITY OF EVIDENCE. In an action by the seller on a note given for a horse, where defendant claimed a rescission of the sale for breach of warranty, plaintiff could show by defendant's witnesses that defendant had subsequently traded the horse or permitted his son to do so, that fact being a circumstance in determining whether defendant was entitled to rescind. the opposite party's failure to produce a witness | was sound and would work well anywhere, whose testimony would have been merely cumu- while in fact she was not sound, and would lative, especially where counsel argued that her testimony related to material facts in the case, not work to the plow, wagon, or buggy, and and would not merely have supported an examwas unsafe. Rescission was also set up. In ined witness as to an immaterial fact. testifying, the defendant stated that Faulkenberry and certain other persons were present when he started to work the mare, and that his wife was present and heard the guaranty given by plaintiff. The defendant denied having received any letters from plaintiff in reference to the matter. In rebuttal thereto, plaintiff testified that he had written certain letters to defendant, stamped them, and mailed them, addressed to defendant at his post office address, and with plaintiff's return card on corner of the envelope. He also testified that he had registered one letter to defendant, and had received his returned registered card signed by defendant. The court permitted him to testify as to the contents of this registered letter. In his argument, the solicitor for the plaintiff said: "Gentlemen of the jury, why did not the defendant have Faulkenberry and the other witnesses here who worked for him and saw him try to work the mare? Gentlemen of the jury, why did the defendant not have his wife here as witness, who he said was present at the time of the contract? Not one word do we hear from Hiram Jordan's wife." Objection was interposed to these statements, and exceptions reserved to the court's declining to rule them out. The following charges were refused to the defendant: "(1) The court charges the jury if Austin guaranteed the mare to Jordan to be sound, and she was not sound, this was a fraud on the part of Austin. (2) The court charges the jury, if the jury believe from the evidence to a reasonable certainty that Austin is indebted to Jordan for board and feed of his horses, the jury should find a verdict in favor of Jordan for the sum due, even if they believe that plaintiff is not entitled to recover anything. (3) The court charges the jury plaintiff had the same right to procure the testimony of Hiram Jordan's wife that defendant had, and the statement of plaintiff's attorney that 'not one word do we hear from Hiram Jordan's wife' was improper, and we should not consider it for any purpose. (4) The court charges the jury, the fact, if it be a fact, that any witnesses do not agree in their testimony as to immaterial facts, will not authorize the jury to disregard their testimony on that account. (5) The court charges the jury that if plaintiff lived at Clinton, Ga., and it was nearly 50 miles from where defendant lived, and it was impracticable for defendant to carry the horse to Austin, the law did not require him to carry it to Austin to rescind." [Ed. Note. For other cases, see Sales, Dec. Dig. 358.*] 8. SALES (8 260*)-WARRANTIES-Fraud. [Ed. Note.-For other cases, see Sales, Cent. Dig. 726; Dec. Dig. § 260.*] 9. SET-OFF AND COUNTERCLAIM (8 59)-ErFECT-RIGHT TO JUDGMENT FOR EXCESS OVER PLAINTIFF'S CLAIM. If plaintiff, suing for the price of a horse, was also indebted to defendant and the debt was pleaded as a set-off, the jury could find for defendant for the sum due him, even if plaintiff was not entitled to recover anything, under Code 1907, § 5860, providing that if a demand offered to be set off exceed plaintiff's demand, the amount of excess being found by the jury, judgment must be rendered against plaintiff for costs and for defendant for the excess. [Ed. Note.-For other cases, see Set-Off and Counterclaim, Cent. Dig. 88 130-132; Dec. Dig. $ 59.*] 10. APPEAL AND ERROR (§ 1068*)-HARMLESS ERROR-CURE BY VERDICT. Error in failing to charge to such effect was cured by a verdict for plaintiff. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4230; Dec. Dig. § 1068.*] Appeal from Circuit Court, Cherokee County; W. W. Haralson, Judge. Action by S. B. Austin against H. E. Jordan. Judgment for plaintiff, and defendant appeals. Reversed and remanded. The issues presented by the pleadings were that the note was given for the purchase price of the mare, with the guaranty that she G. L. Burnett, for appellant. R. C. Hunt and L. H. Lee, for appellee. ANDERSON, J. The defendant did not testify that Faulkenberry and the other man Charge 1 was properly refused. The guaranty that the mare was sound would not be a fraud unless the plaintiff knew of her unsoundness. Charge 2 should have been given (section 5860, Code 1907), but the error in refusing same was cured by the finding of the jury for the plaintiff. Charge 3 asserts the law, and is fully cov. ered in discussing the argument of counsel. There was no error in the refusal of defendant's other requested charges. The judgment of the circuit court is reversed, and the cause is remanded. Reversed and remanded. DOWDELL, C. J., and SIMPSON and MAYFIELD, JJ., concurring. saw him try to work the mare when she refused. He merely stated that they were working with him at the time. The trial court should have sustained the objection to so much of plaintiff's counsel's argument as stated, "Why did not the defendant have Faulkenberry and the other witnesses here who worked for him and saw him try to work the mare?" Morris Hotel Co. v. Henley, 145 Ala. 52, 40 South. 52; Cross v. State, 68 Ala. 476; E. T. V. & G. R. R. v. Bayliss, 75 Ala. 466. While, as a rule, there may be an inference unfavorable to the withholding of evidence, this rule does not obtain where the evidence is equally as accessible to both parties. Ethridge v. State, 124 Ala. 106, 27 South. 320; Mann v. State, 134 Ala. 20, 32 South. 704; Bates v. Morris, 101 Ala. 282, 13 South. 138. Nor can there be an unfavorable inference against a party for the failure to produce a witness whose testimony would be simply cumulative. Jones on Evidence, § 18. The defendant and his daugh- | (Supreme Court of Alabama. June 17, 1909.) ter had both testified to the warranty and the failure of the mare to work, and the testimony of his wife on the subject would have only been cumulative. Counsel should not have commented on the failure of the defendant to prove these facts by his wife also, and the trial court erred in not sustaining the defendant's objection to this argument. It may be that when the comment relates to a nonproduced witness, who could only support an examined witness as to an immaterial fact, it would be error without injury. Lide v. State, 133 Ala. 43, 31 South. 953. The absent witnesses referred to, however, in the present case, and their testimony as charged in the argument, related to material facts in the case. It was competent for the plaintiff to show that he had written defendant demanding payment of the note, and that he received no reply. Defendant testified that he had written the plaintiff complaining of the mare and offering to restore her, and claimed a rescission. The fact that plaintiff had written defendant to pay the note and he failed to reply was contradictory of defendant's theory of an offer to return the mare and of a rescission of the sale, as well as the contention that she did not come up to the plaintiff's warranty, if any there was. A proper predicate was shown for the proof of the contents of the letters written by plaintiff to the defendant, as the plaintiff testified to addressing and mailing them to defendant, and, as the defendant denied getting them, a notice to produce was unnecessary. 2 Wigmore on Evidence, § 1203, subd. “b." There was no error in permitting plaintiff to show by defendant's witnesses what became of the mare, as the fact that defendant traded her or permitted his son to do so was a circumstance in determining whether or not defendant was entitled to rescind the sale. (162 Ala. 127) FEAGIN et al. v. CITY OF ATTALLA. MUNICIPAL CORPORATIONS (§ 642*)-NATURE— Where an appeal was taken to the city court. of Gadsden from a conviction in the mayor's court of the city of Attalla of a violation of an ordinance, and an appeal bond was given or, failing therein, to pay and satisfy such judgconditioned to prosecute the appeal to effect, ment as the city court might render, it was error for the city court to treat the case as criminal, and interpret the bond as binding defendant to appear in that court, as section 12 of the charter of Attalla (Acts 1900-01, pp. 943, 944) expressly clothes such appeals with the charac ter of civil appeals from judgments rendered in evident from such section that the only possible civil cases by justices of the peace, and it is judgment on failure of defendant to appear in such case is the affirmance of the judgment. [Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 642.*] Appeal from City Court of Gadsden; Alto V. Lee, Judge. Tim Feagin was convicted of a violation of a city ordinance, and he appeals. Re versed. Goodhue & Blackwood, for appellant. Alto V. Lee, Jr., for appellee. MCCLELLAN, J. The appellant was convicted, in the mayor's court of the city of Attalla, of the violation of a city ordinance. He was fined, and a hard-labor sentence was also imposed on him. He appealed from the judgment to the city court of Gadsden, in which court the cause was placed on the criminal docket. The cause being called for trial, the defendant did not appear, and judgment was then rendered for the amount of his appeal bond as upon a forfeiture thereof. The city court was in error in treating the case as criminal, and also in interpreting the appeal bond as binding the defendant to appear in the city court. So far as is here important, section 12 of the charter of At DENCE. A charge that there is no evidence of a certain fact need not be given. talla (Acts 1900-01, pp. 943, 944) expressly | 6. TRIAL (§ 206*)-INSTRUCTIONS AS TO EVIclothes such appeals as this with the character of civil appeals from judgments rendered in civil cases by justices of the peace. The appeal bond's conditions are required to be, and in this one were, that the defendant "will prosecute the appeal to effect," or, failing therein, he will "pay and satisfy such judgment as the city court may render." [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 495, 500; Dec. Dig. § 206.*] 7. INSURANCE (§ 95*)-FIRE INSURANCE-NOTICE TO AGENT AS NOTICE TO COMPANY. Notice to a soliciting agent, after a fire insurance policy is issued, is not notice to the company. " Cent. Dig. § 125; Dec. Dig. § 95.*] ITY. Omitting consideration of the question suggested by the placing of this appeal on the criminal docket of the city court, it is 8. INSURANCE (§ 4*) — REGULATION — VALIDevident, from the charter section cited, that Code 1907, § 4594, providing that if an inupon the failure of the defendant to appear surer shall be a member of any traffic associathe only judgment possible of rendition by tion, or shall have made any agreement with corthe city court was an affirmance of the judg-ance with reference to rates of premium, any porations engaged in the business of fire insurment entered in the mayor's court. As in- stipulation in a policy relating to the giving of dicated, the judgment of the city court must notice or proof of loss, etc., shall be void, is be reversed, and the cause remanded thereto. constitutional. Reversed and remanded. SIMPSON, DENSON, and MAYFIELD, JJ., concur. (161 Ala. 600) ETNA INS. CO. v. KENNEDY. (Supreme Court of Alabama. June 10, 1909.) 1. INSURANCE (§ 115*)-FIRE INSURANCE-INSURABLE INTEREST. A stockholder in a corporation has an insurable interest in its property, which will sustain recovery on a fire insurance policy issued to him thereon. [Ed. Note.-For other cases, see Insurance, Cent. Dig. 151; Dec. Dig. § 115.* ] 2. INSURANCE_ (§ 375*) — FIRE INSURANCE WAIVER OF CONDITION IN POLICY-AUTHOR ITY OF AGENT. An agent, authorized to write fire insurance may waive a condition in a policy. [Ed. Note.-For other cases, see Insurance, Cent. Dig. 948; Dec. Dig. § 375.*] 8. INSURANCE (§ 115*)—INTEREST OF INSUR ED-EXTENT. The interest of a stockholder to whom a fire insurance policy is issued on corporate property is not necessarily measured by the value thereof, for the reason that the property is liable first for the corporate debts, and the only interest held by him is his right to share in the distribution of the proceeds after payment thereof. [Ed. Note.-For other cases, see Insurance, Dec. Dig. 4.*] Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge. Action by T. J. Kennedy against the Etna Insurance Company on a fire insurance policy. From a judgment for plaintiff, defendant appeals. Reversed. Plea 2 was as follows: "Said plaintiff, at the time of the execution of the policy of insurance upon which this action is based, was not the owner of the property described in said policy of insurance and which is described in said complaint." The replication to which demurrers were filed is as follows: "(6) Comes the plaintiff, and for special replication No. 6 to plea No. 2 says: He was at the time of the issuance of said policy a stockholder in the Union was the owner of said property. Plaintiff's Publishing Company, a corporation, which interest in said policy was more than double the value of the policy; and the fact that said property was owned by the Union Publishing Company was known to L. W. Rorex, the general agent of the defendant, who made said contract, at the time it was made, and expressly waived the matter of a want of sole and unconditional ownership or other interest on plaintiff's part, save as a stockholder in said corporation. (2) The defendant waived the alleged breach of conditions in said plea set forth in this: That at the time of entering into said contract of insurance L. W. Rorex, the general agent of the defendant and who made said contract of insurance, had notice of the alleged breach [Ed. Note.-For other cases, see Insurance, of such conditions at the time the contract Cent. Dig. 1646; Dec. Dig. § 646.*] was made, in that he had knowledge of facts 5. INSURANCE (§ 665*)-ACTION FOR FIRE IN- leading him to believe, or giving good cause SURANCE- - INTEREST IN PROPERTY-Evi- to believe, that the conditions were not met, and with such notice he failed to make inquiIn an action on a fire insurance policy, evi-ry which would have readily discovered all dence held sufficient to raise an inference that the facts as to such breach of conditions, and plaintiff had some interest in the property. [Ed. Note. For other cases, see Insurance, without inquiry, and knowing that in all Dec. Dig. § 665.*] probability the said conditions were not met, [Ed. Note.-For other cases, see Insurance, Cent. Dig. 151; Dec. Dig. § 115.*] 4. INSURANCE (§ 646*)-ACTION FOR FIRE INSURANCE-BURDEN OF Proof. In a suit on a fire insurance policy, the burden is on plaintiff to show the value of his interest in the property destroyed, and unless he does so he can only recover nominal dam ages. DENCE. he wrote the contract, and thereby waived | pressly waived the matter of the want of such breach of conditions." sole and unconditional ownership. It has The following demurrers were interposed: been expressly held that a stockholder in a "(1) Said replication fails to show that plain- corporation has an insurable interest in the tiff owned any interest in the property. (2) property of the corporation, which will susIt fails to show that the plaintiff owned in- tain a recovery on a policy issued to him on surable interest in said property. (3) Said the property. 19 Cyc. 589; Warren v. Dareplication shows on its face that the policy venport F. Ins. Co., 31 Iowa, 464, 7 Am. Rep. of insurance sued on is void. (4) It fails to 160; Philips v. Knox Co. Mut. Ins. Co., 20 show or aver what, if any, interest the plain- Ohio, 174; Sweeny v. Franklin F. Ins. Co., tiff had in such property, the subject of said 20 Pa. 337; Riggs v. Com. Mut. Ins. Co., 125 insurance. (5) It shows that the agent of N. Y. 7, 25 N. E. 1058, 1060, 10 L. R. A. 684, the defendant had no actual knowledge of 21 Am. St. Rep. 716. Our own court has the breach, but only information which, if held that an agent with authority to write pursued, would have led to such knowledge. | insurance, etc., may waive a condition in the (6) Said replication does not allege or show policy. Continental Fire Ins. Co. v. Brooks, that the plaintiff made known to the defendant the facts which constitute a breach of conditions of said policy at the time said policy was issued." Charge 20 is as follows: "I charge you, gentlemen of the jury, that there is no evidence before you from which you can ascertain the amount of plaintiff's loss or damage." 131 Ala. 614, 30 South. 876, and cases cited; Syndicate Ins. Co. v. Catchings, 104 Ala. 176, 190, 16 South. 46; Western Assurance Co. v. Stoddard, 88 Ala. 606, 611, 7 South. 379. The case of Cassimus Bros. v. Scottish U. Ins. Co., 135 Ala. 258, 270, 33 South. 163, refers only to a notice to the agent subsequent to the issuance of the policy. There was no error in overruling the demurrer to the sixth replication. The theory upon which it is held that a stockholder may recover on a policy of insurance on the property of the corporation is that he has an eq however, that his interest is not necessarily measured by the value of the property destroyed, for the reason that the property of the corporation is liable first for the debts of the corporation, and the only interest held by the stockholder is a right to his share in the distribution of the proceeds after the payment of the debts of the corporation. The property insured was the printing outfit belonging to the Union Publishing Company, a corporation, in which the present plaintiff was principal stockholder, and it seems that the presses were run by a gaso-uitable interest in the property. It is evident, line engine, which appears to be contrary to the terms of the policy. L W. Rorex was the agent of the defendant insurance company, and was also the cashier of the local bank. It was shown by the plaintiff, over the objection of the defendant, that after the issuance of the policy Rorex was in the building occupied by the printing company and saw the gasoline engine at work. It The burden is on the plaintiff, in a suit on was further shown, over the objection of de- an insurance policy, to show the value of fendant, that Rorex was a subscriber to the his interest in the property destroyed, and newspaper and bought job printing supplies unless he produce evidence from which the from the Union Publishing Company. Gross Jury can ascertain the value of his interest was permitted to testify over the objection he is not entitled to recover more than nomof defendant that the Union Publishing Com-inal damages. In this case, the only evipany and Mr. Kennedy gave his wife notes secured by a lien or mortgage on the property of the Union Publishing Company, and that he turned these notes over to Mr. Rorex as cashier of the bank. Lawrence Cooper, George P. Cooper, and Brickell & Smith, for appellant. Virgil Bouldin, for appellee. SIMPSON, J. This action was brought by the appellee against the appellant on a fire insurance policy issued by the appellant. The first assignment of error insisted on is to the action of the court in overruling defendant's demurrer to the fifth replication to plea 2 to the complaint. The substance of plea 2 is that the plaintiff, at the time of the issuance of the policy, was not the owner of the property insured, and the replication is that he was the owner of stock in the company which owned the property, worth more than double the value of the policy, that said fact was known to the general agent of the dence of the value of his interest is that the property destroyed was worth between $5,000 and $6,000; that it belonged to the Union Publishing Company; that the plaintiff owned stock of the par value of $3,500, while $380 of stock was owned by other parties; also that the Union Publishing Company did not hold the legal title to the entire property, but said title to a portion of the property was retained by the Dodson Printers' Supply Company, from whom it had been purchased, upon which there was still due $750; also that there was a lien on the property in favor of Mrs. E. F. Gross for $432. Although this evidence did not furnish sufficient data from which to ascertain the exact amount of plaintiff's interest, yet it was enough to afford an inference that plaintiff had some interest, and the court properly refused the general charge requested by the defendant. There was no reversible error in the refusal to give charge 20, requested by the defendant. This court has frequently held that the |