Opinion
6 Div. 263.
December 22, 1921.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
William A. Jacobs, of Birmingham, for appellants.
Counsel discusses in a general way the argument of counsel for plaintiff, with the insistence that it was very harmful to the defendant, and with the further insistence that the court ought to have granted his motion to enter a mistrial and grant a continuance. 11 Ala. App. 644, 66 So. 942.
Counsel discussed the other assignments, but without further citation of authority.
Black Harris, of Birmingham, for appellee.
Brief of counsel for appellant is not such an insistence as will authorize a review by the court of his assignments of error. Rule 10, Supreme Court, 175 Ala. xviii, 61 South. vii; 10 Ala. App. 439, 65 So. 408; 4 Ala. App. 625, 58 So. 812; 10 Ala. App. 485, 65 So. 454; 186 Ala. 660, 65 So. 354; 160 Ala. 454, 49 So. 318.
It is at least questionable as to whether or not the brief of appellants' counsel so complies with rule 10 (61 South. vii) as to authorize a review of all or any of the assignments of error. It is sufficient to observe, however, that an examination and consideration of same fails to disclose reversible error on the part of the trial court.
So much of the statements or arguments of appellee's counsel which seems to have been objectionable to appellants was provoked or produced by the improper statements or remarks of their counsel. Hanners v. State, 147 Ala. 27, 41 So. 973.
As to whether or not Frick relied on the representation of plaintiff's agent was a question for the jury, to be gathered from the facts and circumstances, and the trial court did not err in not permitting said Frick to testify as to his secret or uncommunicated motive, reason, intent, or purpose.
As to whether or not some of the china had been returned by some of the defendants' customers in and of itself was not proper, as it was but the act of third persons, and, from aught that appears, it may have been returned for causes other than the defect relied upon by the defendants.
Nor was there error in not letting Frick testify that he made the test or experiment after the china, or some of it, had been returned, as this was but an indirect effort to get in evidence which had already been properly excluded.
Moreover the defendants, in effect, got the benefit of this evidence, as Frick was permitted to testify that he made a test of the china "a little after the first complaints were made."
The judgment of the circuit court is affirmed.
Affirmed.
SAYRE, GARDNER, and MILLER, JJ., concur.