44 So. 408 | Ala. | 1907
The trial court erred in permitting the defendant to testify that Leland told him the plaintiff had tried to sell him the property at a profit. Whether this was good evidence agains Green or not, it was clearly not proper to prove it in such a remote and indirect way. Nor should the witness Leland have been permitted to testify as to what was said and done between him and Mrs. Brady after he got to Mobile.
There was no evidence to support counts 1 and 2; but, conceding that' the plaintiff proved the third count, the sufficiency of which said count we do not determine, and was entitled to the general charge, we cannot put the trial court in error for refusing charges 1 and 2 requested by the plaintiff. Charge 1 in effect assumes and instructs a finding for the plaintiff without hypothesizing the belief of the evidence by the jury. Charge 2 requests a finding for the plaintiff for defendant’s breach of a contract “to sell plaintiff’s property.” This charge does not conform to the proof. The property involved in the sale Avas Mrs. Brady’s and not the “plaintiff’s.”
This case was tried upon the general issue, and involved no such defense as was injected into it by charges 1 and 2 given at' the request of the defendant.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
