27 Ala. 592 | Ala. | 1855
Section 3403 of the Code invests the court with ample power to permit an amendment of the complaint by striking out or adding new parties plaintiff or defendant. There was, therefore, no error in allowing the plaintiff to amend the complaint by inserting the name of Sedberry as composing, with Blair, the firm of H. D.Blair & Co.
The witness proved the sale and delivery of the goods, the price of which was sued for, by the plaintiff to the defendant. He 'could not, however, remember the dates. Upon cross-examination he stated, that he never had compared the account with the books. He also testified, that some of the goods were furnished on written orders from the defendant, but he had never seen the defendant write. Neither the books of account, nor the orders, were produced. The defendant asked the court to charge the jury, “ that they must be satisfied from the evidence that the goods charged in the account were sold and delivered to the defendant, or the plaintiff could not, recover.” This charge the court gave. He then asked the further charge, “that what the witness said in reference to the books and orders was not evidence to prove the account sued upon — that the books and orders were the best evidence, and should have been produced.”
It may be conceded, that the evidence of the books and or
No objection has been pointed out to the affirmative charge, that if the jury were reasonably satisfied that the goods were sold and delivered to the defendant by the plaintiff, they should find for the plaintiff. We see no error in this charge. Positive certainty is ordinarily not attainable in such cases. It is sufficient if the jury, as reasonable men, are satisfied as to the existence of the facts which constitute the indebtedness. — Hopper v. Ashley, 15 Ala. R. 457.
Judgment affirmed.