Keep v. Kelly & Levin

29 Ala. 322

Opinion

STONE, J.

1. The sufficiency of the proof to sustain the plaintiff’s action in this case, is not presented in such form that we can consider it. The bill of exceptions does not purport to set out all the evidence ; and the rule in such case is, that we must presume the evidence, if set out, would sustain the charge. — Gaines v. Harvin, 19 Ala. 491.

2. The promise to indulge, copied in the bill of exceptions,is, so far as the proof discloses, without consideration and void. — Agee v. Steele, 8 Ala. 948; Morton v. Barnes, 7 Ad. & El. 19 ; Comegys v. Booth, 3 Stew. 14 ; Wilson v. Bank, 9 Ala. 847 ; Carpenter v. Devon, 6 Ala. 718.

3. The written contract offered in defense, is not the “ foundation of the suit,” and, in this case, does not import a consideration. — Code, § 2278.

There is no error in the record, and the judgment, of the circuit court is affirmed.