56 So. 77 | Ala. Ct. App. | 1911
The motion to dismiss the appeal proceeds on the theory that the act requiring the holding of the circuit court of Marshall county at Albert-ville, a place other than the county seat, is void. The question was considered, and determined adversely to this motion, in Merchants’ National Bank of Lafayette, Ind., v. Thos. B. McNaron et al., 55 South. 242. The action is stated in separate counts; one for money due by account for work and labor done, and the other, on an account due and unpaid.
The bill of exceptions sufficiently shows that the non-suit was suffered because of adverse rulings by the court.—Long v. Holley, 157 Ala. 514, 47 South. 655. It appears from the bill that, by written contract, defendant (appellee) engaged plaintiff (appellant) to serve defendant in the sale of patent chum rights and patent churns elsewhere than at Albertville, Ala. The wages to be paid were stipulated in the writing and defendant was to bear all expenses in travel, except that plaintiff was to pay one-half the expenses “in going out” — the testimony shows — to the state of Texas.
The theory of the defendant seems to have been that plaintiff could not recover in this action if he voluntarily abandoned the engagement. This is true if shown.—Maxwell & Delhomme v. Moore, 163 Ala. 490, 50 South. 882. Whether it was true was, we think, a jury issue under the evidence. This conclusion results from the view that there was evidence tending to show that Downey was defendant’s partner in the enterprise, and, also, that he was authorized to direct plaintiff in the performance of the service for which plaintiff had engaged to defendant. If this phase of the evidence (it was in conflict with other testimony in the case) was
If plaintiff left the field of service under authoritative orders of Downey and returned to Alabama, to await the arrival of the “Moody model,” he was entitled to recover the expense of that journey. Being so entitled, upon the contingency of the jury finding indicated before, the testimony tending to show what the railroad fare was should have been admitted. It was error to exclude it. If, bn the other hand, Downey’s authority to order or direct plaintiff in the service was found not to exist or that it was not exercised by him, the plaintiff could not recover, for it is unquestionable on this record that he abandoned the contract if Downey did not direct his return to Alabama.
No exception to the charge of the court is shown by the bill, so it cannot be reviewed.
The judgment is reversed and the cause is remanded.
Reversed and remanded.
Note. — The foregoing opinion was prepared by Mr. Justice McClellan, of the Supreme Court, before the transfer of the case to this court, and is adopted by this court.
