Goldstein v. Leake

138 Ala. 573

Opinion

McCLELLAN, C. J.

The charges refused to the defendant on the fourth count of the complaint, were each faulty in requiring the jury to affirmatively find for the defendant upon the hypothesis stated in them. Assuming that on this hypothesis, the plaintiff was not entitled to recover under the fourth count, the form of the charges should have been that the jury should not find for the plaintiff, or should not find against the defendant on the count. — Dorsey v. State, 134 Ala. 553; M. & O. R. R. Co. v. George, 94 Ala. 201; L. & N. R. R. Co. v. Sandlin, 125 Ala. 585. These charges, moreover, were properly refused for other reas0ns, not necessary to be gone into here. S

Charge 9 was porperly refused. There ivas ilQ evidence as to .the amount defeiiclant was damaged .by plaintiff hypothesized breach,of the contract.

The record affords no basis for a conclusion on .our part, that the circuit court was clearly in error in holding that the verdict was supported by the evidence, and that the allegations of the motion for a new trial, that the jury returned a “quotient verdict” was not satisfactorily proved, and we cannot say that the court erred' in overruling that motion.

The verdict of the jury, however, did not respond to the issue of the existence vel non of a lien on the house and lot in favor of the plaintiff, and the court erred in entering judgment establishing the lien claimed. — Code, § 2739.'

The judgment appealed from will, therefore, be modified so as to stand as a personal money judgment only, and as modified will be affirmed.

Affirmed.