Handley, Reeves & Co. v. Lawley & Co.

STONE, O. J. This suit was against Lawley and Abercrombie, suing them as individuals and partners, and seeks to recover on a promissory note signed W. W. Lawley & Oo. Abercrombie pleaded non est factum, while Lawley relied on other defenses. The verdict of the jury was, “We, the jury, find the issue for the plaintiff, as against W. W. Lawley, and assess the amount at one hundred and seventy-six 42-100 dollars.” The court thereupon gave judgment, that Abercrombie go hence, and recover of plaintiffs half the costs of [529] the suit, and that plaintiffs recover of Lawley the amount-found by the jury, and the other half of the costs. The plaintiffs, Handley, Beeves & Oo., bring the case to this court by appeal, and contend that the verdict failed to respond to the whole issue, and did not authorize the judgment which, the court rendered. The opinions of the majority of this court in Wittick v. Traun, 27 Ala. 562, and in Traun v. Wittick, Ib. 570, are relied on in support of the contention, that the verdict in this case did not authorize the judgment rendered. In our opinion, the views of the dissenting justice in those cases are supported by the stronger reasoning, and we concur with him. The issues in this case authorized a separate finding, and we hold that, when the jury found in favor of the plaintiffs against one defendant, and said nothing as to the other,' this was equivalent to a finding in favor of that other. Éxpressum facit cessare taciturn. Our ruling is supported by the following authorities: May v. State, 55 Ala. 164; Walker v. State, 61 Ala. 30; Mutt v. State, 63 Ala. 180; Bedsole v. Peters, 79 Ala. 133. See, also, Moody v. Keener, 7 Ala. 218; Alexander v. Wheeler, 69 Ala. 332; St. Clair v. Caldwell, 72 Ala. 527. The Circuit Court did not err in adjudging to Abercrombie his aliquot proportion of the costs. — Code of 1886, §§ 2609, 2852. There was no error in the charges given. Affirmed.