54 So. 234 | Ala. | 1910
This suit was bégun by attachment to recover a balance alleged to be due for rent and advances. • The defendant pleaded the general issue, payment, usury, and set-off. It appeared that a part of the articles charged to the defendant had been. furnished by A. D. Donaldson, plaintiff’s father, at the instance and request of the plaintiff, who thereby became legally
There was testimony which went'to show that at one time the parties had a partial settlement in which certain credits and a balance were agreed upon. Both parties testified that there bad been no understanding or agreement by Avhich usurious interest’was to be paid. All question therefore of usury as affecting plaintiff’s right to receive interest at the lawful rate was taken out of the case’. But evidence that an extralegal rate of interest had been charged in the account against d'e-
Defendant offered in evidence an itemized statement of the articles procured by him from plaintiff, as well as credits on the account between them. This statement showed, among other things, that defendant was indebted to plaintiff for various items of tobacco and snuff, for a sum advanced to relieve defendant’s mules of a mortgage which was about to be foreclosed, and for a fee which plaintiff had paid on defendant’s account to a lawyer. At a later stage of the trial the court granted defendant’s motion to exclude these items on the ground that they were not advances necessary to enable defendant to make a crop. In this there was error. Any and all of these items may have been furnished under circumstances which constituted them advances for the security of which the statute creates a lien. The statute confers a. lien for everything useful for the purposes enumerated, or tending to the substantial comfort and well-being of the tenant, his family, or employees about the service.—Cockburn v. Watson, 76 Ala. 486. There is no reason inherent in the nature of the items here shown which would exclude them from the security of the statute. Moreover, no motion to discharge the levy pro tanto having been made, nor other appropriate step taken to question the inclusion of these items as within the security of the
At the conclusion of the evidence the court gave the general charge for the defendant with hypothesis. The bill of exceptions does not purport to contain all the evidence. Appellee contends that in this state of the record it must be presumed that the evidence in the court below justified the charge, and that errors in the admission or rejection of evidence must be held to have done no harm. In cases where all the evidence does not appear in the bill of exceptions, this court, passing upon the question whether the general charge has been properly given or refused, does presume any state of the evidence in the court below not inconsistent with the record which will justify the court; this upon the theory that error must be affirmatively shown.—School Commissioners v. Goodwin, 30 Ala. 242; Fleming v. Ussery, 30 Ala. 282; Sanders v. Steep, 128 Ala. 633, 29 South. 586; Clardy v. Walker, 132 Ala. 264, 41 South. 78. There are many other cases to the same effect. But appellee’s further contention cannot be allowed. The fact that the entire evidence is not shown by the record, and that, therefore, the general charge may have been given without error on the evidence as it was, does not relieve erroneous rulings oh the admissibility of evidence of their injurious character, for it cannot be said that, if the evidence had been correctly ruled, the court would have given the charge. Error having been affirmatively shown, injury is presumed unless'the record affirmatively rebuts1 the presumption. In this case the presumption of injury is not rebutted by the 'record.
For the errors indicated, the judgment must be reversed and the cause remanded.
Reversed and remanded.