Nash v. Shrader

EIOE, J. When a bill of exceptions fairly admits of two constructions, one of which will support the ruling of the primary court, while the other will not, this court will adopt the former. The bill of exceptions must be construed most strongly against the party excepting. The bill of exceptions in this case shows, that the agreement, on which the defence was rested in the charge asked by the defendants, was made “in the spring of 1852.” That agreement was, that the goods which the plaintiff’s sons should buy at the store of the defendants should be received in payment upon tho demand here sued on, 'the amount of which is some four hundred and fifty dollars. The defendants produced and proved accounts against each of the sons of the plaintiff,, for goods sold them in 1852, amounting in the aggregate to more than two hundred dollars. The bill of exceptions does not profess to set out all the evidence ; nor does it set forth the accounts against the sons of the plaintiff; nor does it negative the idea that some part of these accounts was for goods sold to the plaintiff in the early part of 1852, and before the plaintiff made said agreement, that the goods Ms sons should buy at defendants’ store should be received in payment upon the demand here sued on. Upon this bill of exceptions, we must intend that the accounts against plaintiff’s sons, produced and proved in the court below, showed that some of the goods therein charged were sold to the plaintiff’s sons before the plaintiff-mads said agreement. This presumption is consistent with the record, and sustains the refusal of the court below to give the charge asked by the defendants. If any of the goods were sold to the adult sons of the plaintiff before he made said agreement, then the agreement did not bind him to receive an account for such goods in payment on the demand here sued on; and if he was not bound by this [380] agreement to receive an account for such goods in payment on Ms said demand, nor to'pay for them, then the mere fact that, after these goods had been sold to his sons, he “ said he would accept” the accounts for them “in the settlement”, could not create a legal liability against him to take them in payment, nor make them a payment on his demand. If the charge had been given as asked, it would have made it the duty of the jury to allow, as payment on the plaintiff's demand, all the accounts against the plaintiff's sons, although these accounts may have been in fart for goods sold early in 1852, and before the plaintiff made the agreement referred to in the charge asked by the defendants. When a charge, as asked, needs to be qualified or explained, to prevent it from misleading the jury, there is no error in refusing it. — Swallow v. The State, 22 Ala. 20 : Foster v. Rodgers, at the present term. So, any charge may be refused, which assumes a fact to be proved which is not, although the fact is in itself‘ immaterial. — Waters v. Spencer, 22 Ala. 460. There is no error, and the judgment is affirmed.