Thomas Bros. v. Williams

54 So. 494, 170 Ala. 522, 1911 Ala. LEXIS 30

• Court: Supreme Court of Alabama
• Decided: January 19, 1911
• Status: Published

Opinion

SAYRE, J.

Counts 1 and 2 follow substantially the counts for money due by account and for work and labor done as these appear in form 10 under section 5382 of the Code. Count 3 alleges the breach of an express promise to pay for work and labor done; in other words, an express promise to pay, its consideration, and its breach. The demurrer to the complainant, and to each count thereof, was properly overruled.

During his direct examination as a witness in his own behalf, plaintiff (appellee) testified to the terms of the contract between him and the defendants; but he did not say whether the contract had been reduced to writing. Defendants made no suggestion that the contract was in Avriting, nor did they interpose at the time or later any objection to this testimony. On cross-examination it appeared that the contract was in writing and was in the possession of the defendants. Defendants then exhibited to the witness a printed form of contract, which had blank spaces and was unsigned, and asked him Avhether the cod tract between him and them was like the contract shown him. The plaintiff’s objection was sustained. The court’s ruling must he sustained, if any tenable ground existed, whether assigned or not. The effort of the defendants was to prove the contents of a writing by secondary evidence; no proper predicate having been laid by proof of the loss of the original. There was no error in the court’s ruling.

Defendants made a motion to set aside the verdict and judgment, on the ground that the verdict was in excess of any amount authorized by the evidence. The bill of exceptions is so prepared that at a casual glance it might seem to contain all the evidence. But that fact does not appear with any certainty. In a number of cases in which bills of exceptions were framed as this one is, construing the hills against the exceptors, it has been held that they did not purport to contain all the evidence.—Southern Mut. Insurance Co. v. Holcombe, 35 Ala. 592, 50 South. 1036; Lamar v. King, 168 Ala. 285, 53 South. 279. The presumption is that in passing upon the motion the court had in mind all the evidence which had been adduced at the trial.—Monteagle v. Livingston, 150 Ala. 562, 43 South. 840. But we do not know what that evidence was as a whole, and it is our duty to presume any state of it which will sustain the ruling of the trial court.

Some rulings on the evidence were assigned as error in the motion for a new trial. But exceptions to these rulings do not appear to have been reserved at the trial, and that omission cannot be cured by a motion for a new trial, so as to render the rulings revisable on appeal.—McLendon v. Bush, 127 Ala. 470, 29 South. 56.

It results that the judgment must be affirmed.

Affirmed.

Dowdell,, C. J., and Anderson and McClellan, JJ., concur.