Morris v. Fisk Rubber Co.

DOWDELL, J. The assignments of error numbeied from 1 to 4, inclusive, relate to rulings of the court on the pleadings. These assignments are not insisted on in argument, and we therefore pass them by without consideration. Issue was joined on the first, second, third, eighth and ninth pleas. The first and second were the geneial issue, and the third payment. The eighth plea set up a contract and breach thereof by the plaintiff, and prayed that the damages resulting from said breach he applied in reduction of plaintiff’s claim. The ninth plea set up a contract and a warranty, and breach thereof by plaintiff, and sought a reduction of plaintiff’s claim. Under the issue so made up, there was no error in sustaining plaintiff’s objection to the question asked the witness L. J. Morris, viz.: “State whether or not these» five tirey. which you say Mavville agreed to reshoe, needed reshoeing?” The plea set up a promise hv the plaintiff to reshoe and a breach of this promise. If there was a contract by the plaintiff with the defendant to reshoe the tires, and a breach of this contract, it was wholly immaterial whether the tires needed, redreeing or not. The simple issue was, was there such a contract between the parties and a breach thereof by the plaintiff? The evidence sought to he elicited was neither relevant nor pertinent. We are unable to see how the action of the court- in instructing the jury as to interest on the plaintiff’s demand, and in making the computation for the jury, in the event the jury should find for the plaintiff, could in any way be prejudicial to the defendant. There was no issue upon the qestion of interest, and its ascertain [153] ment was a nieie matter of calculation, in tlie event tbe jury should find in favor of the plaintiff on the question of defendant’s indebtedness. The motion to strike the bill of exceptions is overruled on the authority of Murphy v. St. Louis Coffin Co., 150 Ala. 147, 43 South. 212, at the present term. We find no error in the record, and the judgment will be affiimed. Affirmed. Tyson, C. J., and Anderson and McOdeldan, J.T., concur.