McCormack Bros. Motor Car Co. v. Martin

Alabama Court of Appeals

McCormack Bros. Motor Car Co. v. Martin

105 So. 697, 21 Ala. App. 50, 1925 Ala. App. LEXIS 204

CourtAlabama Court of Appeals

DecidedApril 21, 1925

Docket6 Div. 575.

StatusPublished

Cited by2 cases

This text of 105 So. 697 (McCormack Bros. Motor Car Co. v. Martin) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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McCormack Bros. Motor Car Co. v. Martin, 105 So. 697, 21 Ala. App. 50, 1925 Ala. App. LEXIS 204 (Ala. Ct. App. 1925).

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Opinion

*51 SAMFORD, J.

The only assignments of error insisted upon in brief are assignments 2, 12, and 13. Linder the rule, the other assignments are waived. Smith v. Webb, 17 Ala. App. 148, 82 So. 638.

Assignment 2 takes the point that the trial court erred in refusing to give, at the request of defendant in writing, the general affirmative charge; it being argued that there was no evidence to establish a mutuality in the making of a contract for the sale of a certain Nash automobile. The law is, as is contended for by appellant’s counsel, there must he a meeting of the minds of competent contracting parties, before a valid binding contract can be said to exist. To this point authorities cited in appellant’s briefs are apt and in point. As to whether these facts constituting a contract exist is often a question of fact to be submitted to a jury. As in this case, plaintiff (appellee) says he made a contract with defendant in all its details for the purchase of a Nash automobile, to be delivered at a subsequent date; that he delivered as part payment another car and 18 cents, and signed 12 different notes for $91 each, together with two other papers; that the whole matter was closed so far as he was concerned, and nothing remained to be done except for defendant to deliver him the new car, which it subsequently refused to do ; that defendant still has his 18 cents and his notes and the car he delivered to defendant. Defendant denies this, but, this being the status of the evidence, the affirmative charge was properly refused. So. States F. Ins. Co. v. Kronenberg, 199 Ala. 164, 74 So. 63.

Assignments 12 and 13 refer to remarks of the attorney for plaintiff in his argument to the jury. Defendant objected to the remarks, the court sustained the objection and instructed the jury that they should not consider what the attorney had said. There was no exception reserved, and indeed there could not properly have been one. The ruling was with the defendant. This action of the court does not call for review. Bean v. State, 18 Ala. App. 281, 91 So. 499.

As has heretofore been pointed out, the other assignments of error, not having been properly presented, are waived.

We’ find no error in the record, and the judgment is affirmed.

Affirmed.

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*51 SAMFORD, J.

The only assignments of error insisted upon in brief are assignments 2, 12, and 13. Linder the rule, the other assignments are waived. Smith v. Webb, 17 Ala. App. 148, 82 So. 638.

Assignment 2 takes the point that the trial court erred in refusing to give, at the request of defendant in writing, the general affirmative charge; it being argued that there was no evidence to establish a mutuality in the making of a contract for the sale of a certain Nash automobile. The law is, as is contended for by appellant’s counsel, there must he a meeting of the minds of competent contracting parties, before a valid binding contract can be said to exist. To this point authorities cited in appellant’s briefs are apt and in point. As to whether these facts constituting a contract exist is often a question of fact to be submitted to a jury. As in this case, plaintiff (appellee) says he made a contract with defendant in all its details for the purchase of a Nash automobile, to be delivered at a subsequent date; that he delivered as part payment another car and 18 cents, and signed 12 different notes for $91 each, together with two other papers; that the whole matter was closed so far as he was concerned, and nothing remained to be done except for defendant to deliver him the new car, which it subsequently refused to do ; that defendant still has his 18 cents and his notes and the car he delivered to defendant. Defendant denies this, but, this being the status of the evidence, the affirmative charge was properly refused. So. States F. Ins. Co. v. Kronenberg, 199 Ala. 164, 74 So. 63.

Assignments 12 and 13 refer to remarks of the attorney for plaintiff in his argument to the jury. Defendant objected to the remarks, the court sustained the objection and instructed the jury that they should not consider what the attorney had said. There was no exception reserved, and indeed there could not properly have been one. The ruling was with the defendant. This action of the court does not call for review. Bean v. State, 18 Ala. App. 281, 91 So. 499.

As has heretofore been pointed out, the other assignments of error, not having been properly presented, are waived.

We’ find no error in the record, and the judgment is affirmed.

Affirmed.

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105 So. 697, 21 Ala. App. 50, 1925 Ala. App. LEXIS 204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccormack-bros-motor-car-co-v-martin-alactapp-1925.

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