90 Ala. 347 | Ala. | 1890
In Acklen v. Hickman, 63 Ala. 494, we laid down the-rule as to when a memorandum, used in connection with a witness’ testimony, may itself be put in evidence. The memorandum in this case was scarcely brought within the rule. Possibly, as .furnishing the detailed items and numbers to which the witness had testified, it was brought within the influence of another rule.—Hirshfelder v. Levy, 69 Ala. 351.
The complaint in this case contains only common counts. The count upon which the plaintiff must have recovered, is the one for money had and received. That count comes nearest to the case made by the testimony. So far as the plaintiff’s claim rests on the lumber transaction, there can be no recovery for money had and received. There is no testimony that the lumber had been sold, or so converted by the defendant, as that he could be made to account for the plaintiff’s alleged one-fourth interest in it, as for money. The lumber, even at the trial, was at the mill undisposed of. —Snedicor v. Leachman, 10 Ala. 330; 1 Brick. Dig. 140-1, §§ 74, 89; 3 Ib. 51, § 10 ; Moody v. Walker, 7 So. Rep. 246; 89 Ala. 619. The charge asked by defendant ought to have been given.
Reversed and remanded.