Opinion
6 Div. 416.
June 27, 1929. Rehearing Denied October 17, 1929.
Appeal from Circuit Court, Jefferson County; Richard V. Evans, Judge.
Windham Countryman, of Birmingham, and P. B. Traweek, of Elba, for appellant.
In view of the decision, it is not necessary that brief be here set out.
W. T. Hill and David J. Davis, both of Birmingham, for appellee.
Where the bill of exceptions recites that it contains all the evidence, but it affirmatively appears that contracts, material to the issues, are left out, the appellate court will presume that the omitted contracts justified the giving of the affirmative charge. Brown v. Sutton, 210 Ala. 245, 97 So. 738. Where contract introduced in evidence is not incorporated in the bill of exceptions, the appellate court will not consider ruling on admission of same. Fuller v. Fair, 206 Ala. 654, 91 So. 591.
While the bill of exceptions recites that it contains all the evidence, it affirmatively appears that several written documents were introduced in evidence, but which have been omitted from the record, and these instruments may have justified the trial court in giving the general charge for the plaintiff. Brown v. Sutton, 210 Ala. 245, 97 So. 738. Especially is there foundation for such a presumption from the contract of purchase between the appellant and the purchaser of the property, and which may have provided that appellant was to pay the broker's commission, and which seems to be borne out by the objections to the evidence and the ruling of the court on same.
As the trial court was justified in giving the general charge for the plaintiff it is unnecessary to consider the action in giving or refusing the other written charges or the exception to the oral charge, even if it was so reserved as to permit us to review same, which is questionable. Birmingham R. R. v. Rutledge, 142 Ala. 195, 39 So. 338.
The court cannot pass intelligently on the objections to the documentary evidence, as said documents are not set out in the bill of exceptions, and presumptively they were admissible.
The judgment of the circuit court is affirmed.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.