Opinion
6 Div. 89.
June 26, 1923.
Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster, Judge.
Action in assumpsit by the Mathews Hardware Company against the Allied Sales Corporation. From a judgment for defendant, plaintiff appeals. Affirmed.
Monette Taylor, of Birmingham, for appellant.
Counsel argue for error in the judgment of the court, but in view of the decision it is not necessary to set out the brief.
Livingston Smith, of Tuscaloosa, for appellee.
Where the cause is tried by the court without a jury, and the bill of exceptions does not recite that it contains all the evidence, and it affirmatively appears that it does not contain all the evidence, the court on appeal will presume any state of the evidence which will sustain the judgment. Lewis Land L. Co. v. Interstate L. Co., 163 Ala. 592, 50 So. 1036.
This cause was tried before the judge sitting without a jury. After hearing the evidence, judgment was entered for defendant. The bill of exceptions fails to state that it contains all of the evidence, and, in fact, it affirmatively appears that copy of two orders given Hooks Lumber Company on January 5 and 6, 1921, for shipment to Missouri Valley Bridge Iron Company, attached to answers of defendant to the seventh interrogatory and introduced in evidence by plaintiff, are not in the record. this being the case we cannot review the conclusions of fact arrived at by the trial judge. Gulf State Steel Co. v. Comstock, 17 Ala. App. 430, 85 So. 305; Prude v. Thompson Thompson, 201 Ala. 595, 79 So. 21. This is the only question necessary to a decision.
The judgment is affirmed.
Affirmed.