Strong v. Catlin's Adm'r

STONE, J. It has been uniformly held in this court, that the .rulings of the primary courts, in granting or refusing,-applications for-continuance,-and for new trials, are not revisable. -Such applications are addressed to the sound discretion of the presiding judge;; and the question is not varied, if -the case has previously been decided by this court, and the -opinion .pronounced here has not been seen by the judge presiding in the court below. — Shep. Digest, 698, § 9; Spence v. Tuggle, 10 Ala. 538; Phleming v. The State, Minor, 43 ; Starr v. The State, 25 Ala. 49. ■ [2.] The only other question presented by this record, relates to the admissibility in evidence of the defendant’s letter .to Gatlin & Armstrong. When this case was before in this court, (35 Ala. 6-07,) we decided, that the two facts, that Gatlin . & Armstrong received the defendant’s said letter, and that-the plaintiff’s intestate performed the services, •did not, without mere, entitle the plaintiff to recover. We added : “ Whether -there may not be some other ground from which the defendant’s assent to the terms complied with by the plaintiff may be implied,' will be a subject of inquiry on a future trial. It may ,be, that the defendant will be bound, if he knew that-theplaintiff was publishing the advertisement in his paper, while the publication was .in progress, and failed to dissent from it.” It is certainly the law, that if A request B to perform certain services for him, and C perform the services, with the knowledge and approbation of A, an implied promise arises from A to pay C what those-services are worth; and [709] In proving such a- contract-, A’s request to B would be competent evidence, to prove that' A desired the services-should be performed. Knowledge that one was performing services which another had been requested or employed to perform, without dissent from-the promissor, is a legitimate circumstance to be laid before the jury on the question of ratification, or assent; In the present case, a letter.-.-was addressed to Messrs-Catlin & Armstrong, requesting them to-publish an in — ' closed advertisement in-.a conspicuous place in their newspaper, and to direct attention to it m.-an- editorial. The plaintiff produces that letter on-, the trial. When Mr. Strong was asked for tlie money- on an account for those services made out against-him, and in favor of the plaintiff,he raised no objection.-on the gfound that the publication-had been made by Catlin, instead of Catlin & Armstrong. His objection was, that the account should have been-charged against. the institute, and not against himself. * Urging a-specific objection, .his silence on all others was,-, at least, a circumstance tending to show that he waived all others. — 3 Phil. Ev. (4th Am. ed.) 445-6 ; 2 Greenl. Ev. § 601; Fireman’s Ins. Co. v. Crandall, 33 Ala. 9. Coming to the conclusion- that the reply of Mr. Strong.-, to Mr. Glover tended to show that he raised no question» on the matter of the person by whom the publication had been made — that he only contended that the charge should be against the institute — the letterwas certainly competent evidence, as conducing to prove that Mr. Strong-.had been-instrumental in having the publication-made, and that his request was in his. own name, charging not the institute, . but himself, for the payment of.- the bill.. The testimony was admissible.. Whether-sufficient-or not,,.is a question not presented for our determination. — Hardin v. Turner, 9 Ala. 110 ; Addison on Contr. 53-4-5 ; Higgins v. Hopkins, 3 Exch. Rep. 163 ; Dotz v. Wilson, 14 Johns. 378 ; Shep. Dig. 616, § 473. Affirmed..