Alabama Const. Co. v. Wagnon Bros.

Decision Date23 April 1903
Citation137 Ala. 388,34 So. 352
CourtAlabama Supreme Court

Appeal from Circuit Court, Calhoun County; John Pelham, Judge.

Action of assumpsit for work and labor by Wagnon Bros. against the Alabama Construction Company. From a judgment for plaintiffs defendant appeals. Affirmed.

During the examination of one of the plaintiffs as a witness, he designated certain pages of a book kept by him for the plaintiffs, which showed an account kept by the plaintiff during their work, which said plaintiff, as a witness, stated "was correct and made by him at the time." The defendant objected to the introduction of these pages of the book showing said accounts, upon the ground that they were irrelevant, illegal, and immaterial, and were not an account kept against the defendant. The court overruled the objection, and to this ruling the defendant duly excepted.

Blackwell & Agee, for appellant.

A. F McGhee and T. C. Sensabaugh, for appellees.


The point urged against the admission of certain entries on the pages of an account book offered in evidence by plaintiffs and admitted against the objection of defendant, is that it was not made to appear by the witness who made the entries that he knew them to be correct at the time he made them. This, we think, is wholly untenable. The witness testified that he made the entries at the time upon the book himself and that they were correct. Furthermore, his testimony shows that he had personal knowledge of the matters making up the account, at the time the service was rendered, and at the time the entries were made.

The other assignments of error complain of the refusal of certain written charges requested by defendant. These charges appear in the bill of exceptions, but it does not there appear whether they were given or refused. Section 3328 of the Code of 1896 requires instructions to a jury requested by either party to be in writing, and declares that they must be given or refused in the terms in which they are written; and that "it is the duty of the judge to write 'Given' or 'Refused,' as the case may be, on the document, and sign his name thereto," etc. Barnewall v Murrell, 108 Ala. 370, 18 So. 833. It is true that in another part of the record they are shown to have been "refused" in the manner required by the statute; but this can avail nothing, since they can be presented here only by being incorporated in...

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