Opinion
8 Div. 373.
October 13, 1921.
Appeal from Circuit Court, Madison County; O. Kyle, Judge.
Cooper Cooper, of Huntsville, for appellant.
Counsel insists that the affirmative charge should have been given, but they cite no authority in support of their contention.
Betts Richardson, of Huntsville, for appellees.
The parties plaintiff were properly joined. Sections 4487-4492, 4497, Code 1907; 109 Ala. 258, 19 So. 520; 120 Ala. 233, 25 So. 300; 90 Ala. 525, 8 So. 113. The bill of exceptions does not purport to contain all the evidence, and the court will presume that there was evidence authorizing the refusal of the affirmative charge. 95 Ala. 461, 11 So. 10; 16 Ala. App. 138.
A. C. Smith and Mattie K. Smith sue J. A. Marcrum, as administrator of the estate of Mary A. Smith, deceased, under the common counts for board, washing, fuel, nursing, care, and attention of decedent from November 5, 1918, to April 8, 1919. There was jury trial and verdict for plaintiffs, judgment of court thereon, and defendant appeals.
A. C. Smith is the husband of Mattie K. Smith. The husband and wife may contract with each other except as prohibited by statute. Section 4497, Code 1907. They (the husband and wife) could contract together to perform the services rendered deceased as averred in the complaint, and thereby make themselves partners; and, if they jointly contracted with each other to render the services, and if they rendered them as contracted, then each would be a proper and necessary party plaintiff to recover under their express or implied contract, jointly made with the deceased, as averred in the complaint. Schlapback v. Long, 90 Ala. 525, 8 So. 113; sections 4492, 4497, 4487, Code 1907; Belser v. Tuscumbia Bkg. Co., 105 Ala. 517, 17 So. 40; Compton v. Smith, 120 Ala. 233, 25 So. 300.
There are three assignments of error, but in fact there is practically one. They are refusing, at request of defendant, by the court to give these written charges:
"If you believe the evidence, you cannot find for the plaintiffs under either count of the complaint in this case."
"If the jury believe the evidence in this case, the verdict should be for the defendant."
And the third assignment of error is in overruling appellant's motion for a new trial. This motion is based on refusal of the court to give those written charges, and that the verdict was contrary to the evidence and the law.
The bill of exceptions does not purport to contain or state it is all, or in substance all, of the evidence in the case. It sets out certain evidence, but there is no express statement that all of the evidence or the substance thereof is contained therein. This being the condition of the record on the evidence, the court will presume there was other evidence sufficient before the court to warrant its ruling in refusing the general affirmative charges and in overruling the motion for new trial. Griggs v. State, 58 Ala. 425, 29 Am. Rep. 762; Hood v. Pioneer Mining Mfg. Co., 95 Ala. 461, 11 So. 10. Therefore we decide the court did not err in refusing to give those written charges, and in overruling the motion for a new trial.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.