Opinion
1 Div. 688.
March 27, 1928.
Appeal from Circuit Court, Clarke County; John McKinley, Judge.
Action by the W. T. Rawleigh Company against C. T. Jordan and another. From a judgment for defendants, plaintiff appeals. Affirmed.
See, also, 21 Ala. App. 702, 110 So. 927.
Joe M. Pelham, Jr., of Chatom, for appellant.
Plea 2 of defendant Coats was subject to demurrer. J. R. Watkins Med. Co. v. Hargett et al., 209 Ala. 165, 95 So. 811. The semiannual approval of account was provided for in the contract, when it was signed by defendants, which also provided that defendants were entitled to statement of account at any time they called for it. It was error to refuse introduction of the approval of account.
Adams Gillmore, of Grove Hill, for appellees.
Whatever error there may have been in overruling demurrer to defendant Coats' plea was cured by the charge of the court. Ruling on admission of the approval of the account was without error; plaintiff already having introduced same in evidence.
This was a suit by appellant against appellees as guarantors on a contract made between appellant and one W. T. Jordan. From a judgment in favor of defendants, plaintiff brings this appeal.
The court did commit error in overruling appellant's demurrers to plea 2 of appellee Coats. But this error was fully and completely cured by the action of the court in later specifically charging the jury to disregard said plea and to return a verdict in favor of appellant against Coats, if it found the principal, W. T. Jordan, indebted to appellant in any sum.
Upon the authority of the opinion of this court in W. T. Rawleigh, etc., Co. v. Hooks et al., 16 Ala. App. 394, 78 So. 310, it would seem, and we hold, that there was no error in this case in sustaining appellees' objections to the introduction in evidence of the so-called "semiannual approval of the account" against W. T. Jordan, made by the said W. T. Jordan. According to the authority we have just cited, it was res inter alios acta, and not binding upon these appellees. See, also, Graves et al. v. Ætna Ins. Co. of Hartford, Conn., 215 Ala. 250, 110 So. 390.
What we have said seems to dispose of the only two assignments of error that could, in the most liberal view, be said to be argued and insisted upon in brief. The other assignments, not being so treated, are waived.
Finding no error of a prejudicial nature, the judgment is affirmed.
Affirmed.