Basenberg v. Lawrence

| Ala. | May 11, 1909

DENSON, J.

This cause originated in a justice court; and from the judgment rendered by the justice, in favor of the defendant, plaintiff appealed to the city court. Prom judgment rendered by the latter court, in favor of the plaintiff, the defendant prosecutes this appeal.

The first question presented by the assignment of errors is the ruling of the court declining to exclude the testimony of witness Thomas. The motion to exclude was without merit, because the witness’ testimony did not show, as movant assumed, that the witness “did not know anything about plaster.” A fair construction of the testimony is, not that witness had no knowledge of plaster, but that his knowledge of it was gained from seeing others malee it. Knowledge gained in that way may have been sufficient to qualify him as an expert in respect to the quality of the plaster. The testimony avt.11 bear the construction here placed upon it, and must be indulged against the party taking the bill of exceptions.

The charges requested by defendant were properly refused. The first is misleading and argumentative, and, besides, the contract sued upon is in writing, and contains no stipulations in respect to mistakes. The second of the series is unintelligible. The third charge conflicts with the second count of the complaint, added by amendment on the ,6th day of April, 1907, which claims for work and labor done under the contract. Furthermore, these charges were asked in bulk.

The ruling of the court on the motion for a new trial cannot be reviewed, for the reason that it is not set out in the bill of exceptions, and no exception appears to have been taken to the action of the court on the motion.

No error appears, and the judgment appealed from is affirmed.

Affirmed.

Dowdell, C. J., and Simpson and Mayfield, JJ., concur.