W. H. BRYANT, Appellant, v. THE AFRICAN PRODUCE COMPANY, U.S.A., by and through its Attorney, THOMAS J. R. FAULKNER, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, MONTSERRADO COUNTY.

Argued January 10, 11, 15, 16, 1940. Decided February 9, 1940.

1. It is a rule of the law of continuance that the machinery of the court must be put in motion so as to show the exercise of due diligence before inability to obtain the evidence of a witness will be held good grounds for continuance.

2. Among the causes for granting a continuance are absence of a material witness ; but he must have been subpoenaed.

3. Where it is shown from the records that appellee had made several demands on appellant for payment of a sum due, that appellant had failed to make payment, and that thereafter a suit was brought in which, upon its determination by the appellate court, the court permitted plaintiff, now appellee, to refile within three years from date of the decision, said decision was sufficient notice to appellant and obviated the necessity of any further demand.

4. Only such matters as were interposed in the lower court below and appear in the bill of exceptions as record can be taken cognizance of in the appellate tribunal.

5. If no motion is made to set aside a verdict and for a new trial, an appeal can be taken from a final judgment if (a) exceptions are taken to the verdict and final judgment, and if (b) the appeal itself is taken on questions of law or mixed questions of law and fact raised and passed upon during the trial, and if (c) exceptions have been taken to the particular matter on appeal.

6. All admissions made by a party himself may be used as evidence against him.

In action of debt in the lower court, judgment was rendered against defendant, now appellant. On appeal to the Supreme Court, judgment affirmed.

A. B. Ricks and P. G. Wolo for appellant. William E. Dennis for appellee.

MR. JUSTICE TUBMAN delivered the opinion of the Court.

From the final judgment of the judge of the Circuit Court for the First Judicial Circuit, this cause has come here a second time for review, same having first been disposed of by this Court on the fourteenth day of May[1937] LRSC 17; , 1937, 6 L.L.R. 27, when it was held that the power of attorney under which Thomas J. R. Faulkner sued as agent for the African Produce Company was not a legal power of attorney and, hence, said Faulkner could not recover under same as agent for plaintiff below, whereupon the judgment of the court below was reversed and plaintiff aforesaid was allowed, if it so desired, to renew said suit at any time within three years from the date of said judgment.

Availing itself of this privilege, plaintiff renewed its action and obtained judgment against defendant Bryant in the court below, to which he, said defendant Bryant, excepted and appealed the cause to us for review this second time, he standing in said appeal as appellant and the company, represented by Thomas J. R. Faulkner, as appellee.

The appeal brought is predicated on a bill of exceptions of nine counts, the first count of which presents exceptions taken to the judge’s ruling on the issue of law raised in the pleadings.

Passing on this count of the bill of exceptions, we have to consider this point as waived by appellant, since the judge’s ruling on the issue of law raised in the written pleadings does not appear in the record. Although this was observed by us when the record was being read and appellant’s counsel’s attention was called to the absence of the said ruling in the record, which constituted a diminution of record, appellant neglected and declined to move for an interlocutory order to the court below from this Court to have same sent up, so as to enable us to pass on same, and to have the hearing of the cause postponed for diminution of record until same could be obtained.

We therefore consider this point in the bill of exceptions waived by appellant, and we cannot under the law pass on its merit.

Count two of the bill of exceptions raised the contention that the trial judge erred when he disallowed appellant’s motion for continuance because of the absence of a material witness in the person of one Quella Bryant.

The appellee, who was plaintiff below, resisting the motion, insisted that said motion should not be granted because (1) The cause had been on the docket for a long time, and (2) Since the action was one brought upon a promissory note, Quella Bryant could not be a material witness, the note itself being the best evidence in the whole case.

His honor the trial judge in his ruling denied the said motion and held that inasmuch as the Supreme Court in its final judgment entered after hearing the cause in 1937 had definitely adjudged that, from the evidence in the cause, the plaintiff had conclusively established its debt against defendant, the hearing of said cause at this time would not admit of the evidence of the said Quella Bryant tending to prove that a certain amount of coffee had been dumped by appellant ; hence the evidence of the said Quella Bryant would be immaterial.

Considering the motion of appellant, the resistance of appellee, and the ruling of the trial judge, together with the law relating to continuances, we find that no writ of subpoena appears in the record of this cause for the said Quella Bryant to appear and testify on behalf of appellant in the trial court. It is a rule of the law of continuance that the machinery of the court must be put in motion so as to show the exercise of due diligence before inability to obtain the testimony of a witness will be held good grounds for continuance. Bouvier defines and describes continuance as

“The adjournment of a cause from one day to another of the same or a subsequent term.

“The postponement of the trial of a cause.

“Among the causes for granting a continuance are absence of a material witness; .. . but he must have been subpoenaed. .. .” 1 Bouvier, Law Dictionary Continuance 655-56 (Rawle’s 3d rev. 1914).

We are therefore of the opinion that the trial judge correctly denied the motion of appellant for continuance. The next count in the bill of exceptions that follows consecutively is the third one, which reads :

“And also because when on the 26th day of October A. D. 1938, Counsel for defence put the following cross-question to witness Thomas J. R. Faulkner, Attorney for Plaintiffs, to wit :

`You knowing that since the Opinion of the Supreme Court in the former case in connection with this same alleged debt when you were allowed three (3) years within which to commence a new action against defendant Bryant, and also knowing that Mr. Bryant had written to the Company direct, submitting an amount on said alleged debt and expressing in writing his willingness to settle same, why is it you commenced this action against Mr. Bryant before you communicated with Mr. Bryant in any way demanding him to settle said debt’: “Counsel for plaintiff objected to said cross-question on the ground that :

“The line of procedure pursued by the defendant in this case is somewhat strange, in that, the question does not attempt to deny the debt in litigation, and is therefore irrelevant. Your Honour sustained said objection, to which the defendent excepted.”

Appellant’s counsel in his brief and oral argument at this bar urged with great intensity and fervor that it was legally essential for appellee to have made demand on appellant for said sum due before he commenced this second action and, more so, since appellee’s agent, Thomas J. R. Faulkner, knew full well that appellant had, since the disposition of the former cause, written a letter to his principals in America, made a remittance against the debt, and promised to settle the balance due ; and that therefore it was reversible error for appellant to have renewed his action without first making demand for payment.

We have therefore now to consider whether, under our statute, in an action of debt the creditor must allege in his complaint that demand has been made for payment and that the debtor has failed to pay.

The question whether or not a plaintiff must necessarily make a demand upon defendant before he can legally commence an action of debt does not, in our opinion, arise at this stage of the case at bar. For inasmuch as it is shown from the records that appellee ‘did make several demands on appellant for payment and that thereafter a suit was brought in which, upon its determination by this Court, the Court permitted plaintiff to refile within three years from the date of the decision, said decision was sufficient notice to all parties and obviated the necessity of any further demand.

The fact that appellant overlooked the legal agent of appellee here on the spot and sent a letter to America to the agent’s principals, with $9.70 against a debt of $550, making no definite proposition for paying the balance due but alleging the hardness of times and appellant’s lack of permanent employment at present, and that appellant thereafter furnished the agent on the spot with a copy thereof was sufficient to meet with human resentment from the agent and the agent’s treatment of the notice with contempt.

We are of the opinion, therefore, that the judge did not err when he sustained the objections of appellee’s counsel to the said question, as it was immaterial and irrelevant.

“All evidence must be relevant to the issue, that is, must have a tendency to establish the truth or falsehood of the allegations and denials of the parties. . . .” Stat. of Liberia (Old Blue Book) ch. X, § 27,at 53, 2 Hub. 1550.

Coming now to counts four, five, and six of the bill of exceptions, which raise objections to the trial judge’s overruling questions put to witnesses Faulkner and Ricks and to the admissibility of written documents marked “B. 1” to “B. 4,” we are of the opinion that the questions were properly overruled, as they were immaterial and did not go to the merits of the controversy.

The trial judge was correct in our opinion when he sustained objections to them, for neither of them went to show that the defendant did not owe the debt or that he had paid it, but merely went to show that he was willing to pay same or, in other words, tended to show appellant’s good intentions hardly executed.

The seventh exception presented raises a question as to the illegality of the judge’s charge. But the records reveal the fact that appellant did not take exceptions to said charge in the trial court, and hence he is barred from raising same here. We are therefore of the opinion that, under the statute, only such matters as were interposed in the court below and appear in the bill of exceptions as record can be taken cognizance of in this appellate tribunal.

“The court to which the appeal may be taken shall examine the matter in dispute, upon the record only, they shall receive no additional evidence, and they shall reverse no judgment for any default of form, or for any matter to which the attention of the court below shall not appear to have been called, either by some bill of exceptions, or other part of the record.” Stat. of Liberia (Old Blue Book) ch. XX, § 10, at 78, 2 Hub. 1579.

Now comes the eighth objection urged by the appellant against the trial had in the court below, where he alleges that the petit jury returned a verdict against him, the said appellant, to which he excepts. But appellant failed to file a motion for a new trial and, notwithstanding this fact and the provision of the statute that no appeal shall be taken from a verdict of a jury in any question of mere fact, except to the court in which the case was tried, for the purpose of setting aside the verdict; appellant, without first appealing to the court in which the case was tried by motion praying that the court set aside the said verdict and award him a new trial, has couched it in his bill of exceptions for the consideration of this Court, which, under the statute in such case provided, he cannot do and which we cannot under the same statute consider.

“There shall be no appeal from any verdict of a jury, in any question of mere fact, except to the court in which the case was tried, for the purpose of setting aside the verdict in the manner herein before provided for.” Stat. of Liberia (Old Blue Book) ch. XX, § 2, at 78, 2 Hub. 1578.

This Court in an opinion handed down in the year 1912, in the case of Minor v. Pearson, [1912] LRSC 7; 2 L.L.R. 82, held that if no motion is made to set aside a verdict and for a new trial, an appeal can be taken from a final judgment, if exceptions are taken to the verdict and judgment.

In view of the statute just above recited; we have to modify that portion of said opinion and lay down instead of the principle therein enunciated the following:

If no motion is made to set aside a verdict and for a new trial, an appeal can be taken from a final judgment if (a) exceptions are taken to the verdict and final judgment, and if (b) the appeal itself is taken on questions of law or mixed questions of law and fact raised and passed upon during the trial, and if (c) exceptions have been taken to the particular matter on appeal.

But beside this provision of law which operates against attacking a verdict for the first time in the appellate court, we have gone carefully through the evidence sent up with the transcript of record and, from the arguments made here by appellant’s counsel, we find that his defense against appellee’s suit is that he purchased a large quantity of coffee for appellee and that said appellee contracted to arrange ship bottoms in which to transport said coffee to the United States, but that appellee failed to do so, whereupon he was compelled to dump said coffee into the river.

Notwithstanding this dumping diatribe pleaded, testified to, and argued repeatedly only by appellant himself ; he brought Mr. J. H. Ricks to the stand in the trial court, and Mr. Ricks testified that the appellant did have some coffee which he gave Mr. Ricks from time to time to mix with his coffee to sell, Mr. Ricks’ coffee being of better quality, and that Mr. Ricks sold it and handed over the proceeds to appellant.

Here Mr. Ricks, who was a witness for appellant, impliedly contradicts the dumping of the coffee allegation relied on by appellant, for Mr. Ricks testified that Mr. Bryant, the appellant, gave Mr. Ricks the coffee and he sold it and paid Mr. Bryant the value thereof.

Even the appellant himself failed to state what quantity of coffee he dumped as he alleged because it spoiled on his hands waiting for ship bottoms from the appellee to transport it; and he did not offer any evidence in the nature of a certificate, affidavit, or other writing from a justice of the peace, a notary public or other public officer certifying to the fact which appellant alone sought to establish, i.e., the dumping of $550 worth of coffee.

Another outstanding feature of the dumping affair is that appellant stated that appellee contracted to provide transportation from here to the United States of America for the coffee, but appellant was unable to show any formal contract or even a letter to verify what he contended. The appellee being in the United States of America at the time the arrangement to purchase coffee for it was made with appellant and appellant being in Liberia and appellee having no agent here at the time save appellant, it is obvious that all of their transactions had to be done in writing and the possibility of a parol contract to that effect, as was attempted to be mooted by one of appellant’s counsels, is entirely excluded.

But here appears to be what might be considered the death knell to all of appellant’s contentions and any defense that he may have set up in point of fact: I refer to the letter written by him to the Produce Company, dated May 17, 1937, after he had sought to establish in the original trial the fact of his having dumped the coffee.

This letter so written by him, appearing in the record, is as follows:

“MONROVIA, LIBERIA,
May 17, 1937.

“MR. W. P. ALLEN,
SECRETARY OF THE AFRICAN PRODUCE CO.,
185 MARKET STREET,
NEWARK, N.J.

“MY DEAR MR. ALLEN,
“I am not sure my letter to Dr. Brandon of June 18, 1936 a copy to which I here enclose, has been shown to you by him, nor have I been favoured with a reply from Dr. Brandon who got us together—the Company and I. The letter is a self explanatory. You know all I have theretofore tried to explain. I am very sorry that our friendship has been compelled to terminate into a Lawsuit which has lasted over two years now, when Dr. Brandon should have settled it long since according to my letter. If Mr. Faulkner does not send you a copy of the Court records I shall make it my duty to do so.

“Personally I am not willing to go further with a suit of this nature with you. I feel that the matter should be settled out of court; also, I am sure I have not attempted to cheat the company out of a single cent. Therefore to settle the matter I am willing to assume the responsibility of paying this claim being the value of the coffee which spoiled on hand waiting for a chance to ship it. While assuming to pay this amount of money, I want to explain the condition of my financial situation, at present I am not employed, neither am I making any money in my business at this time, and this situation has been for a good many years now. It dates from the start from the world depression, but yet I am willing to show a willing mind by making an initial payment herewith of the sum of £2.0.0. or $9.70 and shall be making you remittances in the name of the company from time to time until the amount is liquidated. When the chances present themselves, I shall be sending larger amounts.

“I enclose you a draft on the National City Bank of New_ York for £2.0.0. or $9.70—Draft No. T888335—tank of Monrovia, Inc. Please send me an acknowledgment and a receipt. This letter is being sent under registered “A.R.” cover.

“I am yours very truly, and with hopes of mutual good feelings.
” (Sgd.) W. H. BRYANT

“Filed : June 2, 1937.
(Sgd.) JOHNSON,
C. C.
“Certified true and correct copy of the original
(Sgd.) CARNEY JOHNSON
Clk of ct.”

Moreover, as has been seen, Mr. Bryant himself on the fifteenth of November, 1938, had sent to appellee the following statement of account:

[Please see pdf file for table and figures]

Our statute, which is in harmony with the law of most other countries in this respect, declares that all admissions made by a party himself are evidence against him.

“All admissions made by a party himself, or by any agent of his, acting within the scope of his authority are evidence.” Stat. of Liberia (Old Blue Book) ch. X, § 13, 2 Hub. 1549.

We are, in these circumstances, of the opinion that the final judgment appealed from by appellant is in perfect harmony with the law and evidence and should not be disturbed, but on the other hand should be affirmed with costs against appellant; and it is so ordered.

Judgment affirmed.