Buffington v. Cook

35 Ala. 312

Opinion

STONE, J.

In the suit between Chappell as plaintiff’ and Buffington and Cook as defendants, the issue necessarily made by the pleadings was, whether the defendants, or either and which of them, had incurred a legal liability to the plaintiff. As between the two defendants, there was, and probably could be, no issue formed on the relative liabilities of the defendants inter sese. Hence, in that trial, no evidence was or could be properly introduced or examined, having for its object the establishment of such relative liabilities. There is wanting then, in this case, the necessary ingredients of an estoppel by record, as to the fact and measure of liability between Cook and Buffington. — 1 Greenl. Ev. § 523.

[2.] The oral testimony did not authorize the charge which the court gave on the effect of the evidence. It certainly cannot he affirmed that it establishes, without conflict, the right of plaintiff to recover in this action. Shep. Dig. 459, §§13, 14, 15.

Reversed and remanded.