Hardy v. Hardy, 250 Ala. 297, 34 So.2d 212; Rushing v. Rushing, 258 Ala. 390, 63 So.2d 560; Easterling v. Caton, 260 Ala. 543, 71 So.2d 835. By acquiescence or introduction of evidence parties may waive formal pleadings and where court has jurisdiction of subject matter and parties are before it party against whom decree is rendered cannot be later heard to complain that there was no issue arrived upon in case. Miller v. Bryant, 25 Ala. App. 564, 151 So. 362; Manufacturer's Fin. Acc. Corp. v. Autrey, 228 Ala. 149, 153 So. 181; Clark v. Rose, 75 Ala. 129. There being no compliance with statute and rule, and no evidence before appellate court, consideration will of necessity be confined to matters contained in record paper. Code 1940, Tit. 7, § 827; Sup.Ct. Rule 48; Chapman v. State, 249 Ala. 30, 29 So.2d 286. Where evidence is not brought up it will be presumed on appeal that it supports the judgment or decree.

The references to breach of contract and conspiracy were part of the court's references to the contentions of the parties, a practice condoned in this jurisdiction. Miller v. Bryant, 25 Ala. App. 564, 151 So. 362 (1933). Not only is it clear that the issues submitted to the jury did not involve breach of contract or conspiracy, but also we fail to discern any prejudice to the defendant when the trial court did not charge the jury on the law of the plaintiff's allegations, since the plaintiff would have been entitled to an instruction had he been relying upon them and had they been supported by evidence.

"Parties in a suit . . . may by acquiescence or the introduction of evidence waive formal pleading, and form their own issues on the evidence introduced." See also Miller v. Bryant, 25 Ala. App. 564, 151 So. 362, cert. denied, 227 Ala. 570, 151 So. 366; Manufacturers' Finance Acceptance Corp. v. Autrey, 228 Ala. 149, 153 So. 181 (1934); Riddle v. Dorough, 279 Ala. 527, 187 So.2d 568 (1966); Helton v. Easter, 41 Ala. App. 648, 148 So.2d 486 (1962). Since evidence showing a dispute concerning the amount necessary to redeem was introduced and the parties made the stipulation heretofore mentioned, I feel that under this state of facts the rule of the foregoing cases is applicable.

Parties to a suit at law may, by acquiescence or the introduction of evidence, waive formal pleading, and may form their own issues on the evidence introduced. National Life Accident Ins. Co. v. Curtin, 33 Ala. App. 50, 29 So.2d 577; Miller v. Bryant, 25 Ala. App. 564, 151 So. 362, cert. den. 227 Ala. 570, 151 So. 366; Manufacturers' Finance Acceptance Corporation v. Autrey, 228 Ala. 149, 153 So. 181; 71 C.J.S. Pleading § 573b, p. 1147. This principle was applied to the absence of a replication to a plea in Continental Auto. Ins. Ass'n v. Traywick, 211 Ala. 659, 101 So. 614; Cooper v. Lake Wood Co., 199 Ala. 633, 75 So. 307, and Helton v. Easter, 41 Ala. App. 648, 148 So.2d 486.

"The relationship of the parties was a relevant fact to be considered by the jury, dependent for its value on the other evidence in the case; and, if from all the evidence, including the fact of relationship, the jury were satisfied there was no fraud in the transaction, the fact of the existence of this relationship did not cast on the claimant the additional burden and duty of making other and clearer proof." We think the case of Miller v. Bryant, 25 Ala. App. 564, 567-568, 151 So. 362, 365, certiorari denied 227 Ala. 570, 151 So. 366 more clearly states the applicable rule of law, as follows: "The fact that the parties, defendant, were father, mother, and son, and were living on terms of close intimate relationship, is not of itself a badge of fraud, but it is a fact showing confidential relations relevant in all cases, but dependent for its value on other circumstances with which they may be connected. * * *

inkerton v. State, 246 Ala. 540, 22 So.2d 113; Storey v. State, 14 Ala. App. 127, 72 So. 267; Patton v. State, 156 Ala. 23, 46 So. 862; Bouie v. State, 12 Ala. App. 33, 67 So. 619; Fancher v. State, 217 Ala. 700, 117 So. 423; Elliott v. State, 19 Ala. App. 263, 97 So. 115; Thomasson v. State, 21 Ala. App. 562, 110 So. 563; Id., 215 Ala. 315, 110 So. 564. A requested charge directing a verdict for defendant if any one of the jurors is not reasonably satisfied of the plaintiff's right to recover, is erroneous. Coleman v. Adkins, 232 Ala. 351, 168 So. 184; Morrison v. Clark, 196 Ala. 670, 72 So. 305; Wilson v. State, 243 Ala. 1, 8 So.2d 422; Asbury v. Mountz, 234 Ala. 553, 176 So. 282. In a civil suit, the burden of proof assumed by the plaintiff is the establishment, to the reasonable satisfaction of the jury, of the material averments of the complaint, or of some count thereof. 10 R.C.L. 897; Tutwiler v. Burns, 160 Ala. 386, 49 So. 455; Miller v. Bryant, 227 Ala. 570, 151 So. 366; Id., 25 Ala. App. 564, 151 So. 362; American L. E. Co. v. Love, 17 Ala. App. 251, 84 So. 559. A requested charge requiring a verdict for defendant if the jury are reasonably satisfied from the evidence that the plaintiff received his injuries as a proximate result of an unavoidable accident, is erroneous. Birmingham, E. B. R. Co. v. Feast, 192 Ala. 410, 68 So. 294; Grauer v. Alabama G. S. R. Co., 209 Ala. 568, 96 So. 915; Morgan-Hill Paving Co. v. Fonville, 224 Ala. 383, 140 So. 575; Sloss-S. S. I. Co. v. Littrell, 246 Ala. 58, 63, 18 So.2d 709; Sloss-S. S. I. Co. v. Willingham, 243 Ala. 352, 10 So.2d 19. Instructions which ignore or exclude, from the consideration of the jury, evidence which is competent and material to the issues in the case are erroneous. 64 C.J. 793; O'Brien v. Birmingham R. L. P. Co., 197 Ala. 97, 72 So. 343; American Oak Extract Co. v. Ryan, 104 Ala. 267, 15 So. 807; Yarbrough v. Armour Co., 31 Ala. App. 287, 15 So.2d 281. A charge which submits to the jury the determination of a question of

Filing replication to a plea is a waiver of the ruling sustaining demurrer thereto. Browder v. Irby, 112 Ala. 379, 21 So. 351; Manufacturers' Finance Corp. v. Autrey, 228 Ala. 149, 153 So. 181; Brown v. Rattray, 238 Ala. 406, 192 So. 851; Harrison v. Mobile L. Railroad Co., 233 Ala. 393, 171 So. 742. A plea of material alteration without defendant's consent is a good defense to note sued on, and the burden is on the party seeking to introduce note which appears to have been altered to explain the alteration and it is not admissible until then. Code 1923, § 7717; 13 C.J. 987, 988; 10 C.J.S., Bills and Notes, § 486, pp. 1065-1071; Whitewater Lumber Co. v. Langford, 216 Ala. 510, 113 So. 525; Hammond v. Stevens Motor Co., 21 Ala. App. 154, 106 So. 620; Miller v. Bryant, 25 Ala. App. 564, 151 So. 362. An endorser is discharged by a binding agreement between payee and maker to extend time of payment. Code, § 9140(6); 11 C.J.S., Bills and Notes, § 752, p. 324; 10 C.J.S., Bills and Notes, § 284, pp. 772-774; Tuten v. Bowden, 173 S.C. 256, 175 S.E. 510, 94 A.L.R. 1443; McLean v. First Nat. Bank, 221 Ala. 103, 127 So. 550. A note ambiguous as to time of payment is unenforceable. 10 C.J.S., Bills and Notes, § 96, p. 545; Zimmerman v. Zimmerman, 262 Pa. 540, 106 A. 198; Mahoney v. Fitzpatrick, 133 Mass. 151, 43 Am.Rep. 502. The statute of limitations runs from date on a demand note, and in case of conflict between body of note and memorandum on margin, the body of the note governs, especially when the parties so intend; and the statute is tolled only by a payment by the party sought to be charged. Esslinger. v. Spragins, 236 Ala. 508, 183 So. 401; Jackson v. Sample, 236 Ala. 486, 183 So. 646; Id., 234 Ala. 75, 173 So. 510; McLean v. First Nat. Bank, supra; Hyatt's Supply Co. v. Lyle, 222

Code 1923, § 6069. Where the evidence is conflicting or substantially conflicting on material issues, or where reasonable tendencies are conflicting or open to inferences unfavorable to the party asking the affirmative charge, such charge will not be given. Miller v. Bryant, 25 Ala. App. 564, 151 So. 362; Id., 227 Ala. 570, 151 So. 366; Yates v. Barnett, 215 Ala. 554, 112 So. 122. BOULDIN, Justice.

1958) Title 7, Sec. 139. Where plaintiff is entitled to a judgment by default or judgment nil dicit for want of a plea but permits the case to be tried as though the general issue had been pleaded, he cannot afterwards take advantage of the absence of a plea. Blalack v. Blacksher, 11 Ala. App. 545, 66 So. 863; Miller v. Bryant, 25 Ala. App. 564, 151 So. 362; Id. 227 Ala. 570, 151 So. 366; Lokey v. Ward, 228 Ala. 559, 154 So. 802.

Parties in a suit at law may by acquiescence or the introduction of evidence waive formal pleading, and form their own issues on the evidence introduced. Miller v. Bryant, 25 Ala. App. 564, 151 So. 362, certiorari denied 227 Ala. 570, 151 So. 366; Manufacturers Finance Acceptance Corporation v. Autrey, 228 Ala. 149, 153 So. 181. Only two assignments of error are insisted upon and argued by appellant's counsel in his brief, and we confine our opinion to such assignments.