
    (75 South. 963)
    GALE-HOOPER CO. v. RICE.
    (8 Div. 8.)
    (Supreme Court of Alabama.
    May 17, 1917.)
    1. Bills and Notes <&wkey;50-3 — Admissibility ot? Evidence — Consideration.
    In an action on a protested cheek, executed in part performance of an agreement under which defendant was to give his own check and notes in payment of notes of a corporation of which he was president, and whereby plaintiff, according to defendant’s claim was to transfer and send the notes to defendant, but according to plaintiff’s claim was to cancel or return them, a letter, dated subsequently to agreement, in which plaintiff’s agent promises to send the defendant the old notes, was admissible as tending to corroborate defendant’s testimony as to what tlie agreement was.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1733-1739.]
    2. Appeal and Error <&wkey;>1051(l) — Exclusion op Evidence — Harmless Error.
    In an action on a protested, check, executed in part performance of an agreement under which defendant was to pay notes of a corporation of which he was' president, sustaining objection to a question put to defendant on cross-examination as to who owned stock of corpora- , tion, was harmless, where ownership was otherwise shown.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161, 4162, 4165, 4166.]
    <S=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    ' Appeal from Circuit Court, Lauderdale County; C. P. Almon, Judge.
    Action by Gale-Hooper Company against S. D. Rice. From judgment for defendant, plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.
    Affirmed.
    Ashcraft & Bradshaw, of Florence, for appellant.
    Mitchell & Hughston, of Florence, for appellee.
   GARDNER, J.

Suit upon a protested check for $100 on the First National Bank of Florence, Ala., given by appellee to appellant in part payment of an indebtedness of the Rice Hardware Company, a corporation, to plaintiff, the Gale-Hooper Company which indebtedness was evidenced by notes. Tbe defendant, S. D. Rice, was president of tbe Rice Hardware Company. Tbe check was given February 11, 1915, but was postdated March 3, 1915. Tbe defendant insisted that at tbe time be gave tbe check be also executed two notes payable to plaintiff in settlement of a debt due by tbe corporation of which be was president, doing so under tbe express agreement with one Homer' Sewell, representing tbe plaintiff, and with whom tbe settlement was made, that Sewell, within a few days, was to send to the defendant the old notes held by the plaintiff, to be transferred and assigned to defendant, and that this was tbe consideration for which be executed tbe notes.

It was without dispute that at the time tbe check was given tbe plaintiff held three notes of tbe Rice Hardware Company evidencing indebtedness of $500, $100, and $161, respectively, and that Sewell, who was in tbe employ of a collecting agency of Memphis, Tenn., and representing tbe plaintiff procured from defendant tbe execution of tbe check and tbe two notes to cover said indebtedness.

Tbe defendant insisted that Sewell agreed, in consideration of tbe execution of tbe check and notes, to forward from Memphis within a few days the three notes of tbe hardware company, transferred and assigned . to defendant, and that Sewell bad not complied with this agreement when tbe check became due March 3d. Sewell, as witness.for tbe plaintiff, denied that any such agreement bad been made, but insisted that the old notes were to be canceled, and that when be returned to Memphis be bad them so marked by tbe plaintiff’s cashier, though they had not been delivered to the defendant. Sewell further testified that bis agreement with defendant was “to cancel tbe notes or return them,” and that be did “exactly as be bad agreed to do.”

Tbe defendant testified that in tbe settlement with Sewell, resulting in tbe execution of the check and notes of February 11th, Sewell made an effort to have tbe defendant include tbe sum of $69 expenses, which defendant refused to do. Tbe defendant offered in evidence a letter written him by Sewell, bearing date subsequent to tbe alleged settlement, and inclosing a blank note in, tbe sum of $69.50, to be executed by the Rice Hardware Company, and requesting that tbe same be indorsed by tbe defendant personally, promising to send to defendant the old note. Plaintiff’s objection to tbe introduction of this testimony was overruled, and upon this action of the court is based tbe first assignment of, error. We are of tbe opinion that this was relevant testimony, in connection with tbe insistence on tbe part of tbe defendant above referred to, and as tending to show a violation on plaintiff’s part of tbe agreement to transfer tbe old notes, as testified to by the defendant.

On cross-examination of tbe defendant tbe plaintiff asked tbe witness who owned the capital stock of tbe corporation, tbe witness having previously testified that tbe Rice Hardware Company was a corporation with a paid-up capital stock of $5,000. We find nothing in tbe action of tbe court sustaining tbe objection to this question which would call for reversal of tbe cause. If tbe purpose was merely to show tbe defendant’s interest in tbe Rice Hardware Company, that seems to have been sufficiently shown in tbe proof that he was president of the corporation, and by tbe undisputed testimony that be executed the check which is tbe subject of this controversy and tbe two notes payable to plaintiff, on bis individual responsibility in settlement of an indebtedness of tbe said corporation. We can see no other purpose to be served by the question.

Tbe cause was tried upon oral testimony before tbe court without a jury, and tbe evidence was in sharp conflict. We are unwilling to disturb tbe conclusion of tbe court on tbe facts of the case. We find no reversible-error, and tbe judgment of the court below .will be affirmed.

Affirmed.

ANDERSON, O. X, and McOLELLAN and SAYRE, JX, concur.  