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