
    Alabama Construction Co. v. Wagnon Bros.
    
      Action of Assumpist.
    
    1. Admissibility in evidence of an account book. — Where in an action of assumpsit for work and labor done, the plaintiff as a witness testifies that he made certain entries in an , account book of the work done for which the recovery is sought, and that they were correct, the pages of said ac- ■ count book containing such entries are admissible in evideuce, and are not subject to the objection that it was not made to appear by the witness who made the entries, that he knew them to be correct at the time he made them.
    2. Charges of court to jury; hoto rating thereon Should he presented on appeal. — Under the provisions of the statute which require that instructions to the jury requested by either party to a suit, should be in writing, and that the judge should write “Given” or “Refused” as the case may be on said charges and sign his name thereto, (Code, ,§ 3328), when It does not appear from the charges set out in the bill of exceptions that they were given or refused, or that the judge wrote “Given” or “Refused” upon them and signed his name thereto, the rulings of the court up said charges will not be authorized on appeal; and this is true, although in another part of the record it is shown that such charges were refused and so marked in the manner required by the statute.
    Appeal from tlie Circuit Court of Calhoun.
    Tried before the Hon. John Pelham.
    This was an action of assurapist upon the common counts, brought- hy the appellees, Wagnon Bros., against tlie appellant, ‘the Alabama Construction Company, and sought to recover for work and. labor clone by the complainants for the defendant.
    The plaintiffs offered evidence tending to show an indebtedness from the defendant to the plaintiffs for work performed by the plaintiffs as sub-contractors in the construction of a railroad. During the examination of one of the plaintiffs as a witness, he designated certain pages of a book kept by him for the plaintiffs which showed an account kept hy the plaintiffs during their work, which said plaintiff, as a witness, stated “ivas correct and made by him at tlie time.” The defendant- objected to the ¡introduction of these pages of the hook showing said accounts, upon the ground that they were irrelevant-, illegal and immaterial, and was not an account kept'against the defendant, and that it- is not made to appear that the witness knew the entries were correct when he made theta. The. court overruled the objection, and to this- ruling tlie.defendant. cItlIy excepted. Under the opinion on the present appeal it is unnecessary to set out the charges which the defendant- requested the court to give.
    There were verdict and judgment for the plaintiffs. From this judgment the defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.
    Black WEBB & Agee, for appellant.
    The pages of the account hook offered in evidence- by the plaintiff should not have been allowed to be introduced. The witness stated that he made such- entries at the time and that they were correct. He did not testify .that he knew- the entries to be true at the time that he made them. — Bollings v. Fannin, 97 Ala. 621; Aciden v. Hickman, 63 Ala. 498; 'Hart v. Kendall, 82 Ala. 146; Tiling v. Tun ata ll, 109 Ala. 298.
    T. O. Sensabaugh and N. F. Magbtje, contra.
    
    The ruling of the court in refusing the. charges requested by the defendant can not be reviewed on the present appeal. — Donnelly v. State, 130 Ala. 134; Barnwell v. Murrell, 108 Ala. 371; Kuckols v. State, 109 Ala. 4; H. A. & B. R. R. Go. v. South, 112 Ala. 647.
   TYSON, J.

The point urged against the admission of certain entries on the pages of an account book offered in evidence by plaintiffs and admitted against the objection of defendant is, that it Avas not made to a-ppear by the witness Avho made the- entries, that he kneAV them to be correct at the time he made them. This, Ave think, is wholly untenable. -The AAÚtness testified that he made the entries at the time upon the book himself and that they were correct. Furthermore, his testimony sIioavs that he had personal knowledge of the matters making up the account, at- the time the service Avas rendered, and at the time the entries were made.

The other assignments of error complain of the refusal of certain Avritteu charges requested by defendant. These, charges appear in the bill of exceptions, but it does not there appear whether they were given or refused. Section 3328 of the 'Code requires instructions to a jury requested hy either party to be in writing and declares that they must be given or refused in the terms in which they are written; and that “it is the duty of the judge to write ‘Given’ or ‘Refused/ as the case may be, on the document and sign his name thereto,” etc. — Barnewall v. Murrell, 108 Ala. 370. It is tnie that in another part , of the record, .they are shown to have been ‘Refused” in the manner required by the statute, but this can avail nothing since they can be presented here only by being incorporated in the bill of exceptions (Nuckols v. The State, 109 Ala. 2), and, of course, their refusal must be shown in that wav. We cannot presume their refusal as it is essential that the bill of exceptions affirmatively show that fact.

Affirmed.  