Byrd v. Beall

50 So. 53 | Ala. | 1909

MAYFIELD, J.

This is an action of assumpsit by appellee against appellant. The complaint contained four counts; the first, second, and third being common counts, and the fourth claiming damages for breach of special contract. While it appears that special pleas were filed to the complaint, yet the judgment entry shows that the trial was had upon the general issues, with leave to give in evidence any matter which might support a special plea. The trial resulted in a verdict and judgment for the plaintiff for the sum of $245, from which judgment the defendant appeals, here assigning as error the refusal of the court to give two written charges requested by the defendant, numbered 1 and 4, respectively, and the overruling of his objection to the introduction in evidence of the statement of account offered by the plaintiff on the trial.

Charge No. 1 was properly refused, for the all-sufficient reason that it was in effect the affirmative charge, for the defendant as to the items of the account introduced in evidence by the plaintiff. Under the evidence in this case it was clearly a question for the jury whether or not the defendant was liable to the plaintiff for the items shown by the account introduced in evidence and against which the charge was intended; and, of course, the court, under this state of facts, properly declined to take the question from the jury. — Beall Bros. v. Johnstone, 140 Ala. 339, 37 South. 297.

Unquestionably this account was admissible' in evidence, and the account was competent and legal evidence. The plaintiff testified that the defendant owed him when the suit was commenced, and, producing the account in question against the defendant, testified that it was drawn from his books and was an exact copy of his books; that lie himself made the original entry from which account was drawn; that at an arbitration, before the suit was brought, this account, the basis of the present suit, was used; that at that time the defendant admitted that it was correct; and that the identical account offered in evidence was the one there used. This was certainly sufficient proof for the admission of the account as evidence. It is true that the defendant denied that he admitted the correctness of this account on arbitration, and also denied that he received a copy of the statement of the account, and there may be evidence that the identical account offered on the trial was not used on the arbitration and was not the one admitted by the defendant to he correct, if such admission were made; but the truth of these disputed matters was properly left as a question for the jury.

The other charge requested by the defendant, and refused by the court, and as to which error is assigned, was properly refused. • It was not a proper charge, when applied to the evidence as shown by this record, and for the further reason alone that it was, at best, confusing and misleading, could have been properly refused. — Birmingham Ry. Co. v. Wildman, 119 Ala. 24 South. 548; L. & N. R. R. Co. v. Brinkerhoff, 119 Ala. 606, 24 South. 892. The mere fact that the account is shown to be a correct transcript from the books of the plaintiff, though kept by him, without more, would not authorize the introduction of the account in evidence; but that, coupled with the evidence of the plaintiff that the account had been presented to the defendant before suit brought, and that the defendant had admitted that it was correct, and with the fact that the identical account offered in evidence was the one admitted by the defendant to be correct, made the account admissible in evidence. There was, therefore, no- error in the court’s overruling the objection of the defendant to the introduction of the account in evidence. — Rice v. Schloss, 90 Ala. 416, 7 South. 802; Joseph v. Foundry Co., 99 Ala. 47, 10 South. 327; Kilpatrick v. Henson, 81 Ala. 464, 1 South. 188; Ware v. Manning, 86 Ala. 238, 5 South. 682.

The account being admissible in evidence, and there being evidence of the admission of the correctness of the same by the defendant, the weight and sufficiency of such evidence were clearly questions for the jury. While the evidence was not conclusive — while it was open to show that the items composing said account had no foundation in fact, or were incorrect, or that the defendant had no knowledge of their correctness at the time he is alleged to have admitted the correctness of the same--yet the evidence of plaintiff and of the account was properly submitted-to the jury. There was also sufficient evidence as to the consideration, as well as to the correctness of the account, to be submitted to the jury; and the jury having determined the question, and decided it in favor of the plaintiff, and there appearing to be no error of the trial court in the admission of such evidence, or in the submitting of the same to the jury, the cause must be affirmed.

Affirmed.

Simpson, Anderson, and Denson, JJ., concur.