Alabama Iron Co. v. Smith

Supreme Court of Alabama

Alabama Iron Co. v. Smith

46 So. 471, 155 Ala. 287, 1908 Ala. LEXIS 293

CourtSupreme Court of Alabama

DecidedApril 16, 1908

StatusPublished

Cited by11 cases

This text of 46 So. 471 (Alabama Iron Co. v. Smith) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Alabama Iron Co. v. Smith, 46 So. 471, 155 Ala. 287, 1908 Ala. LEXIS 293 (Ala. 1908).

Pincite

Opinion

ANDERSON, J.

Clearly the proof did not support those counts grounded’upon an acceptance by the defendant of the orders; but there was proof in support of counts 8 and 9, and Avhich Asms sufficient to prevent the general charge as to the entire complaint. Nor Avill the trial court he put in error for refusing the affirmative charge as to certain counts in the form in which they Avere asked in the case at bar. — Goldstein v. Leake, 138 Ala. 573, 36 South.458.

The trial court did not err in permitting the introduction of the orders. The plaintiff testified that Allen agreed to turn over to him the wages of the hands if he would feed them, and provided, further, that he got written orders from the hands. It was, therefore, proper for the plaintiff to show said written orders.

The trial court did not err in permitting the accounts due plaintiff in evidence. It is true Jones, who made the entry, could testify only to the correctness of the items sold by him; but he testified that the others were charged as he was instructed by the plaintiff, who sold the other goods. The plaintiff testified that he instructed Jones at the time of the sale to charge the goods as he sold them. Taking the evidence of both witnesses in connection, there was proof of the correctness of the accounts as introduced.

[292]*292We think the trial court erred in permitting the witness Jones to testify as to the contents of the defendant’s books. It is true the plaintiff gave notice of a motion to produce, and for. aught we know the books were in court, or would have been upon demand. In order to lay a predicate for secondary evidence, there must not only be a demand, but a refusal or failure to produce. This evidence was objected to, because no predicate was shown, and the trial court erred in admitting same until the proper predicate was established for the introduction of secondary evidence.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

ANDERSON, J.

Clearly the proof did not support those counts grounded’upon an acceptance by the defendant of the orders; but there was proof in support of counts 8 and 9, and Avhich Asms sufficient to prevent the general charge as to the entire complaint. Nor Avill the trial court he put in error for refusing the affirmative charge as to certain counts in the form in which they Avere asked in the case at bar. — Goldstein v. Leake, 138 Ala. 573, 36 South.458.

The trial court did not err in permitting the introduction of the orders. The plaintiff testified that Allen agreed to turn over to him the wages of the hands if he would feed them, and provided, further, that he got written orders from the hands. It was, therefore, proper for the plaintiff to show said written orders.

The trial court did not err in permitting the accounts due plaintiff in evidence. It is true Jones, who made the entry, could testify only to the correctness of the items sold by him; but he testified that the others were charged as he was instructed by the plaintiff, who sold the other goods. The plaintiff testified that he instructed Jones at the time of the sale to charge the goods as he sold them. Taking the evidence of both witnesses in connection, there was proof of the correctness of the accounts as introduced.

[292]*292We think the trial court erred in permitting the witness Jones to testify as to the contents of the defendant’s books. It is true the plaintiff gave notice of a motion to produce, and for. aught we know the books were in court, or would have been upon demand. In order to lay a predicate for secondary evidence, there must not only be a demand, but a refusal or failure to produce. This evidence was objected to, because no predicate was shown, and the trial court erred in admitting same until the proper predicate was established for the introduction of secondary evidence.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

46 So. 471, 155 Ala. 287, 1908 Ala. LEXIS 293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alabama-iron-co-v-smith-ala-1908.

Opinion

Related

Cite This Page — Counsel Stack