BULL v. O’RILEY, 216 Ala. 73 (1927)

112 So. 437

BULL v. O’RILEY.

6 Div. 885.Supreme Court of Alabama.
April 14, 1927.

Page 74

Appeal from Circuit Court, Marion County; R. L. Blanton, Judge.

Ernest B. Fite, of Hamilton, for appellant.

Counsel argues for error in the questions treated, but without citing authorities.

K. V. Fite, of Hamilton, and Roy Mayhall, of Haleyville, for appellee.

Counsel discuss the questions raised, but without citing authorities.

BROWN, J.

The plaintiff offered evidence tending to show that he entered into a contract with the defendant to furnish the labor and tools, and the defendant the parts, used in the repair of trucks in the service of the defendant while engaged in surfacing a public highway with gravel; and under this arrangement a memorandum or book was to be kept by the plaintiff showing the work done and on what truck, which was to be delivered to defendant’s bookkeeper, at the defendant’s camp, daily for inspection. The evidence on the part of the plaintiff further tended to show that work and labor were performed by the plaintiff and his employees in pursuance of this arrangement, that the book on which memoranda were kept was submitted to defendant’s bookkeeper, and that some of the work had not been paid for.

The evidence offered by the defendant tended to show that no such agreement was made; that he only agreed to pay for work done on trucks used in the work, where he was indebted to the owner of the truck in a sufficient amount to cover the repairs, and the owner of the truck authorized such payment out of money due from defendant to such owner, and in such case he was to deduct 10 per cent. for his services in making the collection.

The book in which a memorandum was kept of the work, the name of the owner, and the number of the truck, with the charge made for the work, was one item of the plaintiff’s evidence, and was properly admitted in evidence in connection with the testimony of the witness McNutt that he had personal knowledge of the correctness of the entries, that he made the entries at the time the work was done, and that they were correct. Code of 1923, § 7701; Jones on Evidence, § 573; Loveman, Joseph Loeb v. McQueen, 203 Ala. 280, 82 So. 530.

In the light of the testimony offered by the plaintiff tending to show that the name of the owner of the several trucks was entered in the book in connection with the number of the vehicle for the purpose of identifying the transaction, there was certainly no presumption of law that the respective items were charged against the party whose name appeared on the book, and charge 4, requested by the defendant, was invasive of the province of the jury, and it was refused without error.

The plaintiff’s answer to the question, made the basis of assignment of error 2, tended to support the defendant’s theory that defendant was not to pay for the work unless the owner of the truck had insufficient time to cover the cost of the work, and if error was committed in overruling the objection to the question and motion to exclude the answer, it was without injury.

This disposes of all questions insisted upon in the argument of the assignments of error. There is no reversible error shown by the record, and the judgment will be affirmed.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.