
    Sanders v. Steen.
    
      Action of Assumpsit.
    
    1. Appeal; presumption in favor of rulings of trial court when bill of exceptions does not purport to set out all the evidence. On an appeal, when the bill of exceptions does not purport to set out all the evidence introduced on the trial, the appellate court will presume, if necessary to sustain the rulings of the trial court, in giving or refusing charges to the jury, that there was other evidence introduced .on the trial in, addition to that set out in the bill of exceptions.
    Appeal from tlie. Circuit Court of Lamar.
    Tried before the Hon. S. H. Spiiott.
    This was an action of assumpsit brought by the appellee against the appellant. The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.
    AV. A. Young, Daniel Collier and J. C. Milner, for appllant.
    Nesmith & Nesmith, contra,
    cited Hood v. Pioneer M. & M. Go., 95 Ala. 461; Evansville & P. P. Go. v. Slater, 101 Ala. 245; Wadsworth v. Williams, 101 Ala. 254.
   TYSON, J.

The original complaint filed in the circuit court contained the common counts. By amendment three counts were added. The first additional count sought to recover of the' defendant $49.04 for goods sold to him upon certain named dates and also $12.81 for goods sold him upon certain other specified dates.

The second one sought to recover $49.04 -for goods sold him by plaintiff for one Clanton.

The third was to recover $12.81 for goods sold him by plaintiff for one'Walker, with interest on each ol .said sums from November 1, 1892.

The only plea filed by defendant was that of the statute of frauds to which replications were filed by the plaintiff. The cause was tried upon the complaint as amended, the plea and the replications thereto.

The court at the request'of the plaintiff in writing gave the written instruction to the jury “that if you believe the evidence you must find for the plaintiff for the sum of $49.04 with interest from the 1st day of November, 1892.” Among the several assignments of error, the giving of this charge is assigned, and it is the only one insisted upon in argument.

The bill of exceptions does not purport to set out all the evidence. Where this is the case, under the uniform rulings of this court, the presumption will be indulged, that there was evidence before the. lower court which authorized the giving of it. Non constat one of the plaintiff’s replications was proven. — Sanders v. Edmonds, 98 Ala. 157; Webb v. Ballard, 97 Ala. 584; Davis v. Badders, 95 Ala. 348; Montgomery & Eufaula R’y Co. v. Kolb, 73 Ala. 405; Southern Suspender Co. v. Van Borries, 91 Ala. 507; 3 Brick. Dig. 406, § 43; Hurd v. The State, 116 Ala. 440; Postal Tel. Cable Co. v. Hulsey, 115 Ala. 193; Torrey v. Burney, 113 Ala. 496; Burgin v. Raplee, 100 Ala. 433.

Affirmed.  