Huckabee v. Shepherd

SOMERYILLE, J. There was no error in the action of the court admitting in evidence the original book containing a registration of deeds, which was a record required by law to be kept in the office of the probate judge. The purpose of its introduction by the plaintiff was to prove the contents of a registered deed executed by the defendant to plaintiff and one Carter, which had been -recorded as prescribed by law. This was clearly permissible after the predicate had first been laid, showing that the original deed was not in the custody or under the control of the party introducing this secondary evidence. The statute expressly authorizes a certified transcript of such record to be admitted, under the above conditions. No reason can be seen why a copy should be received, and the original record itself excluded.—Lawson v. Orear, 4 Ala. 156; Carwile v. House, 6 Ala. 710. If there was any error in the charge given by the court, to which exception was taken, it must be presumed to be error without injury, in view of the fact that this charge was withdrawn by the court from the consideration of the jury, during the progress of the trial. The second charge requested by the defendant was properly refused, because it assumed a variance to exist if the plaintiff failed to prove the exact date when the account became due, or his cause of action on the common counts accrued. Allegations of time, like those of place, quantity, quality and value, when not descriptive of the subject of the action, are not required to be proved strictly as alleged. — 1 Greenl. Ev. §§ 61, 56. The statute of limitations not having been pleaded in defense of the action, the particular time when the account became due was clearly immaterial, provided only this time was prior to the institution of the suit. The contract between the plaintiff and the defendant, bear [345] ing date on the 14th of October, 1880, had reference only to the purchase of the property, known as the “ Bibb County Iron Works,” it being shown that the plaintiff was only acting as agent for a company in which he had an interest. This written instrument contains no reference to the subject of any compensation or commission to be received by the plaintiff for effecting such sale. It may be that, presumptively, a vendee is not entitled to commissions for effecting a sale between the vendor and himself. But there was proof here tending to rebut this presumption, by showing an express agreement to the contrary. The agreement of the parties as to commissions was anterior to, as well as distinct from the contract of sale itself. The ease, then, is one where the particular contract sued on was not reduced to writing, and where the one actually put in writing was not intended to contain all matters of agreement between the parties. Oral evidence is admissible in such cases to show this state of facts, without infringing the rule excluding parol evidence of contemporaneous stipulations, which contradict or vary the legal effect of wwitten instruments.—Brown v. Isbell, 11 Ala. 1009; 1 Add. Contr. (Am. Ed.) § 243. This principle is a qualification of the general rule last stated, and is admitted to be of difficult, and often of delicate application in practice. But it is well founded in reason, as well as established by authority, and is often invoked by the courts “to enable one party to escape from the fraud or injustice of the other.” — 1 Greenl. Ev. (Redf. Ed.) § 284a. In this view of the law, there was no error in refusing the fourth charge requested by the appellant. Judgment affirmed.