150 So. 501 | Ala. | 1933
There is no question presented as to the admission or exclusion of evidence. The appellant contends that there was error in refusing the affirmative charges requested.
The material and controverted question of fact was whether the plaintiff physician rendered such services to defendant's daughter-in-law upon the credit of defendant. This was a jury question under the attendant circumstances and the reasonable inferences therefrom. Weil v. Centerfit,
The basis of appellant's contention is that, since a husband is liable for medical services rendered his wife, the appellant father-in-law would not be solely responsible for the debt, and thus not liable since the promise made was not in writing. However, the position of the appellee is that an original promise arose out of the circumstances, which original undertaking is not within the statute of frauds. As stated, the intention of the parties as shown by the circumstances of the particular case is the true test of whether the promise is original or collateral; and there could arise at any stage of the circumstances an original undertaking which would release the original liability, if such existed.
In the case of Smith Bros. Co. v. Miller,
We have examined the record; there are adverse and reasonable inferences that may be drawn by the jury on the question as to whom the credit was given, and whether or not there was a promise to pay by the defendant. There was no error in declining affirmative instructions requested by the defendant. McMillan v. Aiken,
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.