
    141 So. 233
    CONWAY v. HILL GROCERY CO.
    6 Div. 112.
    Supreme Court of Alabama.
    April 14, 1932.
    Anderton & Batten and Randolph Hobbs, all of Birmingham, for appellant.
    William S. Pritchard, James W. Aird, and Thomas H. Fox, all of Birmingham, for ap-pellee.
   BROWN, J.

This appeal is by the plaintiff from the order of the court granting defendant’s motion for a new trial.

The first count' of the complaint declares as for the breach of the condition of a written lease entered into between the parties on the 15th day of August, 1925, “for failure to deliver over the furniture and fixtures” in the leased premises at the expiration of the lease, and for attorney’s foes for the prosecution of the suit as stipulated in the lease.

While it appears from the bill of exceptions that the witnesses were interrogated in respect to the lease which was handed to one of the witnesses during the trial, it does not appear that the lea so itself was offered in evidence; nor is it set out in the bill of exceptions.

At the conclusion of the evidence and before the jury retired, the defendant excepted to that part of the oral charge of the court authorizing them to ascertain and assess against the defendant an attorney’s fee, and also requested the affirmative charge as to count one, which was refused.

The lease not being in evidence, the plaintiff was not entitled to recover on the first count of the complaint, and the rulings of the court above stated as to this count justified the granting of a new trial. Burns v. Broughton et al., 223 Ala. 527, 137 So. 418; Mansfield v. Morgan, 140 Ala. 567, 37 So. 393; Alabama Power Co. v. Conine, 207 Ala. 435 93 So. 22.

Affirmed.

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