117 So. 34 | Ala. | 1928
One phase of the present controversy was presented on a former appeal. Phillips v. Catts,
And on the 23d day of February, 1922, the appellant filed another suit of like character, claiming damages for the breach of the same contract, joining therein the common counts, on account stated, and for money had and received. These cases were, by order of the court, consolidated and tried as one case. The pleas were the general issue, the statute of limitations of three and six years, fraud in the procurement of the contract, and that the coal for which royalties are claimed was not mined on defendant's property, with joinder of issue on all pleas and special replications to pleas 4 and 6.
At the conclusion of the evidence, the court, at the instance of the defendant, directed a verdict through the affirmative charge in writing requested by the defendant, and from the judgment on the verdict of the jury the plaintiff prosecuted this appeal.
The contract, which is pleaded as the foundation of the plaintiff's cause of action in the special counts, and as clearly appears from the record, upon which he relied for recovery under the common counts, as well, to state it in the language of appellant's supplemental brief, "is set out several times in the record in this case, but it does not appear in the bill of exceptions because of the fact that, while the bill states that this Exhibit B was introduced in evidence, and while the witnesses, Catts, Phillips, Dilworth, and Wood, and perhaps others, were examined at length about it, and some of the witnesses read it, yet, by oversight, it was not copied in the bill of exceptions."
As set out in the record here the contract appears as pleaded, not as evidence, and the recital in the bill of exceptions is that "thereupon the plaintiff offered in evidence the contract marked Exhibit B." The appellant's contention now is that on the authority of Hines v. Miniard,
The cases cited are to the general effect that, when the matter is called to the attention of the court in argument or the pleading in the case under consideration, the court will take judicial notice of its records on the former appeal of the same case, or in another case pending on appeal here between the same parties and involving the same subject-matter, to ascertain the issues of law and fact there involved, and the result, and the influence of such adjudication on the questions presented in the appeal under consideration. See, also, Ala. City G. A. R. Co. v. Bates,
However, the rulings in those cases do not authorize or justify this court to look to the record on the former appeal to supply omission in the bill of exceptions or ascertain the contents of the writing not set out therein. The bill of exceptions does not identify the contract with Exhibit B offered in evidence in the trial of the case on the equity side so as to justify its inclusion in the bill of exceptions by the transcribing officer in preparing the transcript. Parsons v. Woodward,
While these authorities preclude consideration of the assignments of error based upon the giving of the affirmative charge, that is not to say that it was given without error, but in the light of the presumption indulged, the appellant has failed to properly present the question. Clardy v. Walker,
Though a claim may arise out of a special contract, if the contract has been fully performed by the plaintiff, and nothing remains to be done by the defendant but the payment of the amount stipulated, the plaintiff may recover under the common counts. Jos. Joseph Bros. Co. v. Hoffman McNeill,
When we come to consider the assignments of error based on the rulings of the court admitting or rejecting evidence, they are to be considered without the aid of the presumption obtaining in respect to the giving or refusal of charges. Berow v. Brown,
In fact, the rule of practice regulating the preparation of bills of exceptions does not require that the evidence be set out in extenso as to such questions, but only sufficient of its tendencies to show that the errors of which the appellant complains were probably prejudicial. Rule 32, supra.
The deed from Mary Wood to the defendant, Phillips, was offered as evidence after both parties had closed, and the witnesses had been discharged. It appears to have been defendant's contention that Mary Wood was a married woman at the time of its execution, and her husband did not join therein; that the deed, though antedating her marriage, was in fact executed after her marriage, and, the witness having been discharged, defendant was unable to prove these facts. Under these circumstances, the matter addressed itself to the sound discretion of the trial court. Centennial Ice Co. v. Mitchell,
One of the contentions of the defendant was that his signature to the contract was procured by fraud by plaintiff, representing that it provided that plaintiff was not to receive a percentage of the royalties on the coal mined under the lease which he aided in procuring, unless the lease carried a royalty of ten cents a ton on one seam and seven cents on the other, and that the contract offered in evidence by the plaintiff did not express the true agreement between the parties.
As tending to sustain this contention, defendant offered Fayette Phillips, a son of the defendant, as a witness, who testified that he had a conversation with the plaintiff in 1915, at Dora, in which plaintiff stated to the witness, "in substance, that he wanted me to see my father and try to get my father to renew a contract that he had with him regarding leasing his lands; * * * that he had asked my father, and he had refused to do so. He stated that, unless he could get him to renew the contract which had expired, that he would lose the expenses that he had had in prospecting the property." On cross-examination plaintiff's counsel asked the witness: "And in that conversation Mr. Catts told you that he had a contract with your father, that your father was to pay him one cent a ton for all coal mined under that lease?" The defendant objected to this question on the ground that it was immaterial, irrelevant, and illegal, and is a self-serving declaration, and the court sustained this objection.
The rule of our decisions is that, where a part of a conversation has been elicited from a witness on the direct examination, the opposite party has the right, on cross-examination, to call for the whole conversation, or to inquire into all the facts and circumstances connected therewith, although they may not be admissible as independent testimony. Nelson v. Iverson,
We are of opinion, therefore, that the trial court fell into error in sustaining the defendant's objection to the question propounded to the witness Phillips, and that this error must work a reversal of the judgment.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur. *491
