50 Ala. 446 | Ala. | 1874
In the court below, Bray & Brothers sued Hart in an action on an account, or verbal contract; and Hart pleaded, as a set-off, an amount claimed by him for rent of a storehouse in the city of Eufaula, during the year 1867. The only question raised by the assignment of errors is the objection to the charge of the court below, given on the plaintiff’s motion, and excepted to by the defendant, which is set out further on in this opinion. The objection here insisted on is, that this charge “ tends to mislead the jury.” As a general rule, this is not sufficient to reverse, unless it appears that the jury were really so misled. In such a case, it is the duty of the party objecting to the charge, to ask a proper explanatory charge. Abraham & Bro. v. Nunn, 42 Ala. 51; Scully v. The State, 39 Ala. 240; Fitzpatrick v. Hays, 36 Ala. 684; Sharpe & Wife v. Burnes & Coles, 35 Ala. 653; Hughes v. Hughes, 31 Ala. 579; Kenan v. Holloway, 16 Ala. 53; Towns v. Riddle, 2 Ala. 694; Salomon & Boullemet v. The State, 28 Ala. 83; Cothran v. Moore, 1 Ala. 423; Knight v. Clements, 45 Ala. 89; De Phue v. The State, 44 Ala. 32.
But is it the case in this instance that the charge is misleading? The only question before the jury, on the trial below, about which there was any controversy, was, whether the brick store on the corner in the city of Eufaula was rented by the defendant, Hart, on the night of the 26th of November, 1866, to Bray & Brothers, the plaintiffs in this suit, or to Hardy, Bee-man & McGehee. The evidence tends to show, that Bray &
The result is that the judgment of the court below is affirmed. .