Shafer & Co. v. Hausman

DOWDELL, J. This cause was tried. by the city court'without a jury. There are four assignments of error. The first two relate to the judgment rendered, and the other two, to the ruling of the court on the admission of evidence. Only two questions are presented. The bill of exceptions does not purport to set out all of the evidence. ‘•When on appeal the bill of exceptions fails to recite that it contains all the evidence, this court will presume any state of evidence which would sustain the giving or refusal of an instruction to the jury by the trial court.” Postal Tel. Co. v. Hulsey, 115 Ala. 193; Sanders v. Steen 128 Ala. 633; Randall v. Wadsworth, 130 Ala. 633. For the same reasons this court will sustain the judgment of the trial court on the facts, where the cause is tried without a jury. Moreover, there was evidence tending to show that the order sued on was accepted conditionally, and, that the conditions never happened, and without any fault on the part of the defendant, This court has repeatedly held that a judgment will not be reversed un [241] less plainly erroneous, on trials like this; and even if the bill of exceptions here had purported to contain all the evidence, on this state of the proof, it could not be said that the judgment was plainly erroneous. — Ward v. Shirley, 131 Ala. 568; Randall v. Wadsworth, supra; L. & N. R. R. Co. v. Solomon, 127 Ala. 189. The plaintiff objected to the following question asked the; witness Ausfeld: “Was it not the agreement between plaintiff and defendant at Hausman’s office, that he would accept a prorate of what should be left after the houses were completed?” and moved to rule out the answer of the witness. The action of 'the court in overruling the objection, and permitting the evidence, constitutes the ground of the last two assignments of error. Evidence without objection was introduced both by plaintiff and defendant as to what transpired at Haus-man’s office in regard to the matter of a prorate. The evidence was relevant as bearing upon the question of the fulfillment of the conditions of acceptance of the order sued on. The question was not objectionable as calling for a conclusion of the witness. That which was called for, was only the statement of a collective fact, and die following cases seem conclusive of this proposition. — Hood v. Disston & Sons, 90 Ala. 378; Woodstock Iron Co. v. Roberts, 87 Ala. 436; Woodstock Iron Co. v. Reed & Partlow; 84 Ala. 493; Saltmarsh v. Bower & Co., 34 Ala. 613; Anderson v. Snow & Co., 9 Ala. 247; Griffin v. Isbell, 17 Ala. 184. We find no reversible error in the record, and the judgment, will be affirmed. Affirmed.