Opinion
5 Div. 975.
March 24, 1927. Rehearing Denied April 21, 1927.
Appeal from Circuit Court, Chambers County; S. L. Brewer, Judge.
Hooton Moon, of Roanoke, for appellant.
Charge 2 is a correct statement of law, and should have been given. First Nat. Bank v. Nelson, 105 Ala. 180, 16 So. 707; Code 1923, §§ 9202, 9203, 9146, 9147. The affirmative charge was due to have been given for plaintiff. The rulings on evidence constituted reversible error. Day v. Thompson, 65 Ala. 269; Litchfield v. Falconer, 2 Ala. 280.
J. A. Hines, of La Fayette, for appellees.
Counsel discusses the questions raised, but without citation of authorities.
The general affirmative charge should not be given when there are adverse inferences that are reasonable. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135. There were such inferences that prevented the giving of such instructions. The case of First National Bank v. Nelson, 105 Ala. 180, 16 So. 707, involved a controversy between Mrs. Nelson and the bank for money used by the husband in payment of his debts to the bank.
Refused charge 2, when referred to the evidence, was incorrect or misleading. If the wife did not deliver the check to the husband with the intent of parting with her legal title to the proceeds thereof, and the husband breached her instructions in the deposit thereof, this did not divest her of title. The charge, when applied to this evidence, justified its refusal.
The question to W. N. Estes, as to the deposit of his part of the purchase price of the land was material and tended to shed light upon the inquiry as to whom the money belonged that was deposited in the Chambers County Bank; that is to say, if his part of the fund went in payment of the Roanoke Banking Company, it was a relevant fact, and necessary to the true answer as to what fund was employed by the husband in making the deposit in his name with the Chambers County Bank.
The witness Estes was properly permitted to state the fact of whether or not the wife gave him any part of said fund or proceeds of the check.
The objection does not reach the vice of statement of conclusion.
The judgment is affirmed.
ANDERSON, C. J., and SOMERVILLE and BROWN, JJ., concur.