66 So. 827 | Ala. Ct. App. | 1914
Before the bill of exceptions in this cause was signed by the presiding judge, the county court of Coffee county was abolished, and subsequently a motion was presented to this court to establish the bill of exceptions. By written stipulation of counsel filed thereafter in this court, the bill of exceptions found in the record will be deemed and treated as the established bill. The plaintiff sought under the common counts to recover of the defendants for a sum of money which he claimed to have paid to them in excess of an account or debt, owing by him to them. The plaintiff had judgment, and defendants appealed.
No pleas appear in the record, and we will presume that the trial was had on the general issue.
One of the witnesses in the course of his examination stated that he could not testify of his own knowledge, independent of the books, what amount the appellee owed to appellants. He was thereupon asked by appel
Whether the witness under such circumstances is in fact testifying from his independent recollection, or simply from what he has thus observed from the document is a question to be tested on cross-examination, and to be determined by the jury.
Appellants offered in evidence that portion of their book which contained the account against appellee, and which had been examined by the parties on the occasion testified to by the witness Ward, counsel for appellants stating to the court, at the time, that the purpose for which the evidence was’offered “was to show the account stated between the plaintiff and the defendants and the settlement memorandum there entered and agreed to by and between the plaintiff and the defendants and the balance due then entered and agreed to” by them. Counsel for appellee objected to the introduction in evidence of the book, which objection the court sustained. To this ruling appellants duly excepted.
At least one witness had testified that the books were correct, hut independent of this the evidence tended to
The trial court erred in each of these rulings. The other rulings with respect to the admission of evidence was free from error.
The court in its oral charge to the jury stated that “if the plaintiff was unwilling to pay the balance that he promised to pay, then the settlement was of no effect,” •and that “the burden of proof is upon the defendant to prove an indebtedness due by the plaintiff under the mortgage, for $300 greater than the amount named and set out in the face of the mortgage.”
Ordinarily the court will consider an oral charge in its entirety, and not one excerpt therefrom. If the 'excerpt assigned as error, standing alone, would be erroneous, but when taken in connection with the entire charge is explained elsewhere in the charge, and the charge as a whole fully and correctly covers the case, the judgment will not be reversed; Western Union v. Snell, 3 Ala. App. 263, 56 South. 854; Central of Georgia v. Knight, 3 Ala. App. 436, 57 South. 253. If however, the entire oral charge is not set out in the bill of exceptions, as in the case here, so that the appellate court can consider it as a whole, the court, can only consider that portion which is set out.
“It is only incúmhent on the appellant to show error; and if there is anything in the case which would show that the error was harmless and the appellant left it out of the bill of exceptions, the presiding judge could have required the matter embodied in the bill before signing it,” etc. — Central of Georgia v. Thweatt, 151 Ala. 388, 44 South. 380.
The burden of proof was upon the plaintiff to establish the fact that as the result of fraud or mistake of fact, he had paid an amount in excess of what he in fact owed. The payments haying been voluntarily made, establishment of that fact was a condition precedent to his right of recovery. The mere fact that a part of the debt, which the evidence tended to show, was evidenced by a mortgage introduced in evidence did not shift the burden.
The trial court erred in the quoted instructions to the jury.
Since the judgment must be reversed, it is unnecessary to consider the action of the circuit court in denying the motion for a new trial.
For the errors pointed out, the judgment must he reversed, and the cause remanded.