Rivers v. Paterson & Edey Lumber Co.

Supreme Court of Alabama

Rivers v. Paterson & Edey Lumber Co.

101 So. 652, 212 Ala. 96, 1924 Ala. LEXIS 74

CourtSupreme Court of Alabama

DecidedOctober 23, 1924

Docket1 Div. 334.

StatusPublished

Cited by3 cases

This text of 101 So. 652 (Rivers v. Paterson & Edey Lumber Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rivers v. Paterson & Edey Lumber Co., 101 So. 652, 212 Ala. 96, 1924 Ala. LEXIS 74 (Ala. 1924).

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Opinion

THOMAS, J.

The trial was had upon the third count and the general issue. It was an action on an itemized verified statement of the account filed with the complaint. It had the indorsement thereon that the same was verified by affidavit of a competent witness. Code 1907, § 3970, as amended by Gen. Acts 1915, p. 609. The defendant filed in the cause no affidavit denying, on information and belief, the correctness of the account; and no objection was interposed on the trial to its introduction in evidence. The judgment was for the plaintiff.

The affirmative charge should not be given if there are adverse inferences of material facts that may be drawn by the jury. McMillan v. Aiken, 205 Ala. 35, 88 So. 135. There was no error in declining defendant’s written request to give such charge. The itemized statement of account, duly verified, was competent evidence of the correctness of the items of the account, and justified the refusal of the charge. Benton Merc. Co. v. Owensboro Wagon Co., 207 Ala. 49, 91 So. 784; Baker v. Haynes, Henson & Co., 146 Ala. 520, 40 So. 968.

The assignment of error predicated on the introduction in evidence of the ledger sheet is not available to appellant, as the same was offered under the first and second counts of the complaint, which were eliminated. Such evidence was not offered in support of count 3 of the complaint, on which the trial was had. The like observation may be made as to all rulings on introduction of evidence limited to counts 1 and 2 of the complaint. This applies to assignments of error based on the overruling of defendant’s objection to the introduction iñ evidence of the account of sales. The same being limited to the eliminated counts, if error was committed, it was without injury to defendant. The recovery was rested on the third count of the complaint.

There is no error in the record.

The judgment of the circuit court is affirmed.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.

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THOMAS, J.

The trial was had upon the third count and the general issue. It was an action on an itemized verified statement of the account filed with the complaint. It had the indorsement thereon that the same was verified by affidavit of a competent witness. Code 1907, § 3970, as amended by Gen. Acts 1915, p. 609. The defendant filed in the cause no affidavit denying, on information and belief, the correctness of the account; and no objection was interposed on the trial to its introduction in evidence. The judgment was for the plaintiff.

The affirmative charge should not be given if there are adverse inferences of material facts that may be drawn by the jury. McMillan v. Aiken, 205 Ala. 35, 88 So. 135. There was no error in declining defendant’s written request to give such charge. The itemized statement of account, duly verified, was competent evidence of the correctness of the items of the account, and justified the refusal of the charge. Benton Merc. Co. v. Owensboro Wagon Co., 207 Ala. 49, 91 So. 784; Baker v. Haynes, Henson & Co., 146 Ala. 520, 40 So. 968.

The assignment of error predicated on the introduction in evidence of the ledger sheet is not available to appellant, as the same was offered under the first and second counts of the complaint, which were eliminated. Such evidence was not offered in support of count 3 of the complaint, on which the trial was had. The like observation may be made as to all rulings on introduction of evidence limited to counts 1 and 2 of the complaint. This applies to assignments of error based on the overruling of defendant’s objection to the introduction iñ evidence of the account of sales. The same being limited to the eliminated counts, if error was committed, it was without injury to defendant. The recovery was rested on the third count of the complaint.

There is no error in the record.

The judgment of the circuit court is affirmed.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.

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101 So. 652, 212 Ala. 96, 1924 Ala. LEXIS 74, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rivers-v-paterson-edey-lumber-co-ala-1924.

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