Hicks Auto Co. v. Handley Meek Co.

96 So. 196, 209 Ala. 289, 1923 Ala. LEXIS 405

Opinion

McCLELLAN, j.-

This action was instituted by appellee against appellant. The first count declares on two unpaid- checks, issued and delivered to plaintiff by the defendant. Code, § 5132; Cruger v. Armstrong, 3 Johns. Cas. (N. Y.) 5, 2 Am. Dec. 126; 8 C. J. pp. S10, 811. The second count is on an account for goods, etc., sold by plaintiff to defendant. The third- count is on an account stated — referring to the giving of the checks in suit in connection with the allegation of stated account. The pleas were the general issue and set-off and recoupment consequent upon the return and acceptance of goods, etc., shipped to defendant by plaintiff, and, also, for "breach of warranty in respect of automobile tires that were returned to and received by the plaintiff; constituting, it is averred, the consideration of the indebtedness declared on. None of the pleading was tested by demurrer or otherwise.

The cause was tried by the court without jury — taking the testimony ore tenus. Hackett v. Cash, 196 Ala. 403, 72 South. 52, and many others in its line.

The only assignment of error even apparently insisted upon in brief is the action of the trial court, in admitting in evidence the checks declared on. After the plaintiff had offered the checks in evidence and had concluded its testimony, the defendant sought to interpose objection to their admission in evidence. Aside from the belated character of the objection, the court did not rule on the objection. There is nothing presented for review.

The judgment is affirmed.

Affirmed.

ANDERSON, O. J., and SOMERVILLE and THOMAS, JJ., concur.