Opinion
8 Div. 727.
April 2, 1929.
Appeal from Circuit Court, Madison County; Paul Speake, Judge.
Action in assumpsit by the Standard Corporation against A. J. Dickerson. From a judgment for defendant, plaintiff appeals. Affirmed.
The suit was upon a contract entered into by the parties whereby plaintiff agreed to prepare, furnish, grant, and sell for the exclusive use of defendant, and defendant agreed to buy, on the terms stated, the exclusive franchise rights in and for the city of his residence to and for the "Standard Advertising Service known and specified as Men's Furnishings, a specialized copyrighted Advertising Service, embodying the constant efforts of highly skilled artists and advertising experts," furnished periodically and compiled upon a basis of seasonable changes, for one year; one complete set of matrices and two sets of each periodical compilation, comprising part of the service, published during the period covered by the agreement, to be sent the defendant.
Plaintiff introduced the deposition of its credit manager, showing that plaintiff had prepared and furnished to defendant said copyrighted advertising service, matrices, proof books, etc.; that all the advertising service furnished was furnished and compiled upon a basis of seasonable changes; and that defendant is indebted to plaintiff in the full amount of the contract price.
Defendant's evidence tended to show that the matter furnished was not according to contract; that in the spring plaintiff furnished advertising matter for fall and winter stuff.
A witness for defendant, having testified that plaintiff sent more matter which defendant could not use, was asked, "Was it seasonable?" Plaintiff's objection to the question was overruled, and witness answered: "It was practically the same as the other service. We couldn't use it."
Defendant, as a witness, testified that the matter furnished by plaintiff was not seasonable and that he had returned it asking that the contract be canceled. On cross-examination the witness was sought to be interrogated as to whether or not he had admitted liability under the contract.
The jury returned a verdict for defendant. There was judgment accordingly, and this appeal follows.
Griffin Ford, of Huntsville, for appellant.
Counsel argue for error in the rulings assigned, but without citation of authorities.
Lanier Pride, of Huntsville, for appellee.
Brief of counsel did not reach the Reporter.
There are seven formal assignments of error, all of which relate to rulings of the court on the admission of testimony.
The brief filed on behalf of appellant cites no authority and is little more than a suggestion to the court that it rule on the assignments, which we proceed to do.
The question propounded to plaintiff's witness Nelson, in interrogatory No. 7, called for a statement of facts within the knowledge of the witness, and the objection should have been overruled; but the answer to interrogatory No. 8 rendered the error harmless. The whole of interrogatory 7 was answered in response to interrogatory 8.
The word seasonable was a word used in the contract between the parties and its meaning was evident. If the advertisement was "seasonable," that is, in the proper season of the year when the merchandise advertised was usually sold, it was within the time of the contract; if not, the contract was not complied with and the defendant would not be liable. The court's ruling on this testimony was free from error.
Plaintiff's attorney asked defendant: "Did you authorize Mr. Lanier to tell me or to tell Mr. Ford that you were liable for one-half of this claim and would pay that amount?" Objection to this question was properly sustained, calling as it did for a conversation between defendant and his attorney.
There is no error in the record, and the judgment is affirmed.
Affirmed.