Strong v. Catlin's Adm'r
37 Ala. 706
Ala.
1861
Check Treatment
STONE, J.

It has been uniformly held in this court, that the .rulings of the primary courts, in granting or refusing,-applications for-continuance,-and for new trials, are not revisable. -Such applications are addressed to the sound discretion of the presiding judge;; and the question is not varied, if -the case has previously been decided by this court, and the -opinion .pronounced here has not been seen by the judge presiding in the court below. — Shep. Digest, 698, § 9; Spence v. Tuggle, 10 Ala. 538; Phleming v. The State, Minor, 43 ; Starr v. The State, 25 Ala. 49.

■ [2.] The only other question presented by this record, relates to the admissibility in evidence of the defendant’s letter .to Gatlin & Armstrong. When this case was before in this court, (35 Ala. 6-07,) we decided, that the two facts, that Gatlin . & Armstrong received the defendant’s said letter, and that-the plaintiff’s intestate performed the services, •did not, without mere, entitle the plaintiff to recover. We added : “ Whether -there may not be some other ground from which the defendant’s assent to the terms complied with by the plaintiff may be implied,' will be a subject of inquiry on a future trial. It may ,be, that the defendant will be bound, if he knew that-theplaintiff was publishing the advertisement in his paper, while the publication was .in progress, and failed to dissent from it.”

It is certainly the law, that if A request B to perform certain services for him, and C perform the services, with the knowledge and approbation of A, an implied promise arises from A to pay C what those-services are worth; and *709In proving such a- contract-, A’s request to B would be competent evidence, to prove that' A desired the services-should be performed. Knowledge that one was performing services which another had been requested or employed to perform, without dissent from-the promissor, is a legitimate circumstance to be laid before the jury on the question of ratification, or assent;

In the present case, a letter.-.-was addressed to Messrs-Catlin & Armstrong, requesting them to-publish an in — ' closed advertisement in-.a conspicuous place in their newspaper, and to direct attention to it m.-an- editorial. The plaintiff produces that letter on-, the trial. When Mr. Strong was asked for tlie money- on an account for those services made out against-him, and in favor of the plaintiff,he raised no objection.-on the gfound that the publication-had been made by Catlin, instead of Catlin & Armstrong. His objection was, that the account should have been-charged against. the institute, and not against himself. * Urging a-specific objection, .his silence on all others was,-, at least, a circumstance tending to show that he waived all others. — 3 Phil. Ev. (4th Am. ed.) 445-6 ; 2 Greenl. Ev. § 601; Fireman’s Ins. Co. v. Crandall, 33 Ala. 9.

Coming to the conclusion- that the reply of Mr. Strong.-, to Mr. Glover tended to show that he raised no question» on the matter of the person by whom the publication had been made — that he only contended that the charge should be against the institute — the letterwas certainly competent evidence, as conducing to prove that Mr. Strong-.had been-instrumental in having the publication-made, and that his request was in his. own name, charging not the institute, . but himself, for the payment of.- the bill.. The testimony was admissible.. Whether-sufficient-or not,,.is a question not presented for our determination. — Hardin v. Turner, 9 Ala. 110 ; Addison on Contr. 53-4-5 ; Higgins v. Hopkins, 3 Exch. Rep. 163 ; Dotz v. Wilson, 14 Johns. 378 ; Shep. Dig. 616, § 473.

Affirmed..