McCaskey Register Co. v. Nix Drug Co.

• Decision Date: 06 February 1913
• Citation: 7 Ala.App. 309,61 So. 484
• Parties: McCASKEY REGISTER CO. v. NIX DRUG CO.
• Court: Alabama Court of Appeals

61 So. 484

7 Ala.App. 309

McCASKEY REGISTER CO. v. NIX DRUG CO.

Court of Appeals of Alabama

February 6, 1913

Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.

Action by the McCaskey Register Company against the Nix Drug Company. Judgment for defendant, and plaintiff appeals. Affirmed.

R.P. Coleman, of Dothan, for appellant.

Espy & Farmer, of Dothan, for appellee.

PER CURIAM.

1. There were two counts to the complaint. The first count declared upon a promissory note, payable in monthly installments of $15.12 each. The second count declared upon a special contract whereby the Nix Drug Company, the defendant in the court below (appellee here), ordered a certain register from the plaintiff in the court below (appellant here), and agreed to pay for the same in installments. The bill of exceptions discloses that the case was tried upon the "plea of the general issue, with leave to give in evidence any matter that might be specially pleaded." That plea enabled the defendant to take advantage of any matter of defense which might have been specially pleaded in bar of the suit, and, to be specific authorized the defendant to offer evidence tending to show that the note or contract, the foundation of the suit, was procured through fraud, and was therefore not binding upon it. Converse Bridge Co. v. Collins, 119 Ala. 534, 24 So. 561. There was a jury and verdict for the defendant, and from the judgment pronounced upon that verdict the plaintiff appeals.

2. The bill of exceptions discloses that the plaintiff introduced a certain note and also a certain contract, but it fails to set out either the note or the contract so introduced. It may be that the note and contract so introduced were the note which is described in the first count of the complaint, and the contract which purports to be set out in haec verba in the second count of the complaint, but we do not know this. Bills of exceptions are construed most strongly against the appellant, and all legal intendments are with the trial judge. He cannot, in any of his rulings, be put in error unless error on his part is affirmatively shown. As neither the note nor the contract is set out in the bill of exceptions, we do not know what their terms were, and it may be that, under their very written terms, the defendant was entitled to the general affirmative charge. It is probable that this is not true, but we are not authorized in passing upon a question of this sort to consider probabilities. "It would be an unsafe practice for this court to presume the trial court erred when the facts upon which the ruling was predicated are not before this court." Nelson v. Shelby Mfg. Co., 96 Ala. 530, 11 So. 701 38 Am.St.Rep. 116; Barwick v. Rackley, 45 Ala. 217. It may be, for aught that is shown by the bill of exceptions that the original contract which the bill of exceptions says was introduced in evidence contained a clause providing that the defendant could seasonably countermand the order for the register, or that, if upon the receipt of the register the defendant elected not to keep it, the register could be returned at the cost of the plaintiff, and that the defendant's note would be canceled and returned to it. While all of this may not be true, we do not from the bill of exceptions know what the recitals of the contract were, and therefore do not know that this situation did not exist. It follows, therefore, that the plaintiff was so far as the bill of exceptions discloses not entitled, for the above reasons, if for no others, to the general affirmative charge which it requested the trial judge to give to the jury in its behalf.

3. It has been frequently decided that an objection to a question calling for improper testimony should be made before the answer to the question is given by the witness. A party cannot be permitted by delaying to object to a question before it is answered to speculate as to what the answer to the question will be, and then, if the answer is responsive and is unfavorable to him, put the...