Davis v. Clausen

Apr 10, 1913

Versions:62 So. 267

7 Ala. App. 381

1913 Ala. App. LEXIS 71

THOMAS, J.

This is the second appeal in this case. —Davis v. Clausen, 2 Ala. App. 382, 57 South. 79. *383Aftеr that reversal, upon another trial had, there ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Avas again a judgment for the appellee, Clausén.

The principles of law involved in the case were settled on the former appeal in line ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍with the latest ruling of our Supreme Court on the subject, as found in thе case of Smith v. Sharpe, 162 Ala. 438, 50 South. 381, 136 Am. St. Rep. 52, which we are without authority to overrule, if we were so disposed. Hence the cоrrectness of the action of the trial court in overruling appellant’s motion to exclude plаintiff’s evidence, in refusing appellant’s request ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for thе afflrmativé charge, and denying his motion for. a new trial must bе tested by the principles of law applicаble to the case as declared on the former appeal, and which it is not necessary here to repeat.

The motion for a new trial is predicated upon a number of grounds, and embraсes the other two assignments of error mentioned. The meat of the whole contention is that the evidеnce is not sufficient to justify or warrant the verdict found. The testimony of the plaintiff, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍corroborated by that оf the purchaser and even that of the defendant in some material particulars, tends to sustain, direсtly in-some instances, and by fair inferences in others, еvery material ingredient of the proof necessary to support a claim for commissions.-— Davis v. Clausen, 2 Ala. App. 382, 57 South. 79.

When thеre is evidence to support a verdict, it should not be set aside because it may not corresрond with the opinion of the court as to the weight of the testimony, or because it may be against the mere preponderance of the evidenсe. And this court ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍will not reverse a trial court for refusing to set aside a verdict on the ground that it is contrary to the evidence, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence аgainst the verdict is so *384decided as to clearly convince us that it is wrong and unjust. — Cobb v. Malone, 92 Ala. 635, 9 South. 738. We have carefully examined the evidence and are not so convincеd.

Except upon cross-examination, as a gеneral rule it is never permitted to interrogate, or for a witness to answer, as to his uncommunicated motives or intentions; but in the present case we arе of opinion that there was no injury, if error, in allowing thе purchaser of the property to state thаt his motive in going out to see or look at the property was to buy it, if it suited, and if it did not, not to, since there is no question but what such was his object or purpose. Whеther he was induced by the plaintiff or by .Plaggmeyer to make the visit and examine the property, with this view, was the issue. The fact that he did so was not disputed.

We find no error in the record, and the judgment is affirmed.

Affirmed.