Sanders v. Steen

• Decision Date: 16 January 1901
• Citation: 29 So. 586,128 Ala. 633
• Parties: SANDERS v. STEEN.
• Court: Alabama Supreme Court

29 So. 586

128 Ala. 633

SANDERS v. STEEN.

Supreme Court of Alabama

January 16, 1901

Appeal from circuit court, Lamar county; S. H. Spratt, Judge.

Action by J. W. Steen against George H. Sanders. Judgment for plaintiff, and defendant appeals. Affirmed.

W. A. Young, Daniel Collier, and J. C. Milner, for appellant.

Nesmith & Nesmith, for appellee.

TYSON, J.

The original complaint filed in the circuit court contained the common counts. By amendment three additional accounts were added. The first additional count sought to recover of the defendant $49.04 for goods sold to him upon certain named dates, and also $12.81 for goods sold him upon certain other specified dates. The second one sought to recover $49.04 for goods sold him by plaintiff for one Clanton. The third was to recover $12.81 for goods sold him by plaintiff for one Walker, with interest on each of said sums from November 1, 1892. The only plea filed by defendant was that of the statute of frauds, to which replications were filed by the plaintiff. The cause was tried upon the complaint as amended, the plea, and the replications thereto.

The court, at the request of the plaintiff in writing, gave the written instruction to the jury "that if you believe the evidence you must find for the plaintiff for the sum of $49.04, with interest from the 1st day of November, 1892." Among the several assignments of error, the giving of this charge is assigned, and it is the only one insisted upon in argument. The bill of exceptions does not purport to set out all the evidence. Where this is the case, under the uniform rulings of this court the presumption will be indulged that there was evidence before the lower court which authorized the giving of it. Non constat one of the plaintiff's replications was proven. Sanders v. Edmonds, 98 Ala. 157, 13 So. 505; Webb v. Ballard, 97 Ala. 584, 12 So. 106; Davis v. Badders, 95 Ala. 348, 10 So. 422; Railway Co. v. Kolb, 73 Ala. 405; Suspender Co. v. Van Borries, 91 Ala. 507, 8 So. 367; 3 Brick. Dig. p. 406, § 43; Hurd v. State, 116 Ala. 440, 22 So. 993; Cable Co. v. Hulsey, 115 Ala. 193, 22 So. 854; Torrey v. Burney, 113 Ala. 496, 21 So. 348; Burgin v. Raplee, 100 Ala. 433, 14 So. 205.

Affirmed.