Hall v. Cardwell, 59 So. 514

Hall v. Cardwell

59 So. 514 | Ala. Ct. App. | 1912

WALKER, P. J. —

The second count of the complaint was not subject to demurrer on the grounds assigned. It averred an actionable misrepresentation of a material fact upon AAdiich the plaintiff relied in making the *484purchase mentioned. It was not necessary to allege that the vendor, the defendant, knew of the falsity of such representation. — Perry v. Johnston et al., 59 Ala. 648; Atwood’s Adm’r v. Wright, 29 Ala. 346; Smith v. Sweeney, 69 Ala. 524. As the third count of the complaint is not set out in the record, the action of the court, on the demurrer to it cannot be reviewed.

In the course of the examination of the plaintiff as a witness in his own behalf, he introduced in evidence, without objection, a mortgage given by him to the defendant, testifying that the amount secured thereby included the price of the mule, in the sale of which he claimed that the defendant made the misrepresentation complained of. After the mortgage had been introduced in evidence, the plaintiff described the mule in controversy. Thereupon the defendant moved the court to exclude said mortgage as evidence, because it did not describe the mule in controversy. When the mortgage was introduced, it was not claimed or stated that it described that mule. The court cannot be charged with error in overruling the motion to exclude, made on the ground just stated. If that evidence was subject to any legal objection, the ground stated in the motion did not disclose it. It was not the fact that the mortgage did not describe the mule that rendered it inadmissible as evidence, if it was inadmissible if duly and seasonably objected to.

It appears from the record that the defendant could not have been prejudiced by the action of the court in overruling his objections to two questions asked his witness Moore .on cross-examination. No answer was made by the witness to one of the questions, and his answer to the other one was favorable to the defendant.

On the cross-examination of the defendant’s witness Heaton, the plaintiff, over general objections made by *485the defendant, vas permitted to bring out the fact that this witness and another witness for the defendant had been witnesses for him in another case. Tt is not perceived how it is possible for the defendant to have been prejudiced by proof of this isolated fact. Besides, the questions seeking to elicit this fact might well have been regarded by the court as merely preliminary, to an inquiry as to some statement then made by the witness, supposed to have some bearing upon his testimony in the pending case. And those questions were followed by others, asking the witness as to former statements deposed to by him; but the record does not show that any answer was made to either of these later questions. A trial court will not be put in error for overruling a general objection to a question, not specifying any grounds, unless the testimony which it may elicit is plainly inadmissible for any purpose. — Sanders v. Davis, 153 Ala. 375, 44 South. 979.

The court was not in error in excluding evidence as to what the defendant gave the plaintiff for two mules taken in a settlement made between them. Neither of these mules was the one in the sale of which the plaintiff claimed that the misrepresentation complained of was made. The excluded evidence had no bearing upon the issues in this case.

The counsel for the defendant, in his argument to the 'jury, contended that the burden was on the plaintiff to show by a preponderance of the testimony that he is entitled to recover. The charges given by the court on this subject correctly stated the rule as to the burden of proof, omitting the requirement that the jury’s belief of the existence of the requisite facts be supported “by a preponderance of the evidence.” — Arndt v. City of Cullman, 132 Ala. 540, 31 South. 478, 90 Am. St. Rep. *486922; Callaway & Truitt v. Gay, 143 Ala. 524, 39 South. 277.

The court was justified in refusing to give the written charge requested by the defendant, because of its singling out part of the evidence in the case for the consideration of the jury, conceding that it was free from objection on other grounds.

Affirmed.