Smith v. Sweeney , 69 Ala. 524 ( 1881 )

STONE, J.

The general charge to the jury, given by the presiding judge in the court below, was in writing. It covers more than six pages of the folio transcript, and is made up of several paragraphs, but the paragraphs are not numbered, or otherwise designated, so as to show the parts, or any parts, into which the charge is divided. The only exception to this charge is in the following language: “ To which charge the defendant excepted separately and severally and as a whole.” Under the uniform rulings of this court, this can only be treated as a general exception to the entire charge as given. When a charge is divisible into separable or distinct propositions, the exception must j)oint out the portion or portions of the charge objected to, that the presiding judge, having his attention directed .to the subject, may recall or modify his own rulings; or, opposing counsel may have the opportunity of having that part of the charge withdrawn. If the exception fail to specify the part or parts objected to, then the exceptor takes upon himself the burden of showing the whole charge incorrect; and failing in any respect, his exception avails him nothing — Chapman v. Holding, 60 Ala. 522; Holland v. Barnes, 53 Ala. 83; Owens v. The State, 52 Ala. 400; Bernstien v. Humes, 60 Ala. 582; Hardin v. The State, 63 Ala. 39; Gray v. The State, 63 Ala. 66; Mayor v. Rumsey, 63 Ala. 352; S. & N. R. R. Co. v. Sullivan, 59 Ala. 272; Mayberry v. Leech, 58 Ala. 339. This last case is almost precisely like the one under consideration, and is decisive of the question we have been considering.

' Defendant asked sixteen written charges, eleven of which were refused. The following is the only exception to the ruling on the charges requested: “Which charges were'refused by the court, and to which refusal the defendant excepted.” This being a general exception to a mass of charges refused, it follows, under the authorities cited above, that if any one of the charges asked assert an incorrect legal proposition, the appellant can take nothing by his exception, although every other charge asked may assert a legal truism. — Mayberry v. Leech, supra; Beaver v. Hardie, 59 Ala. 510; McGehee v. The State, 52 Ala. 224.

Applying these principles, it is manifest, that much of the general charge is free from error. New of its utterances are assailed in argument, and we apprehend counsel of appellant would admit that, in the main, it correctly declared the law.

In the ninth charge asked is the following language: “In order to set aside the sale, the representations of Smith must have been false at the time they were made, and Smith must have known them to be false.” ' If there had been no relation of trust and confidence between Sweeney and Smith, this is not the rule for testing the suggestio falsi, as laid down in this court. If in the negotiation, or preparatory to it, Smith recklessly, or without knowing whether it was the truth or not, made a material statement as fact, which if true, would be calculated to influence the conduct of Sweeney, and did influence him in making the sale, then, if the statement turned out to be false in fact, this was such a fraud on Sweeney, as would authorize him to rescind the contract. — Munroe v. Pritchett, 16 Ala. 785: Atwood v. Wriqht, 29 Ala. 346; Foster v. Gressett, Ib. 393.

But this case is much stronger. If the testimony be believed, there was a relation of trust and confidence between Smith and Sweeney. The conscience of the former was charged with honest, faithful service to the latter, and of truthful, faithful report of all within his knowledge, affecting the value of the horse, which he had undertaken to train for a reward. The fact that Smith employed an unsuspected third person to effect the trade for him, is itself a suspicious circumstance against him, and does not in the least relieve him of the duty of fully informing Sweeney of the progress, performance and capabilities of the horse he had in training. Unless, before purchasing, he made a full and candid disclosure of all that had come to his knowledge, affecting the value and speed of the horse, he committed a fraud on his employer, and the law will not uphold him in such ill-gotten gains. — Thompson v. Lee, 31 Ala. 292; Huguenin v. Baseley, 14 Ves. 273; 1 Sto. Eq. Jur. §§ 315, 316, 316a and authorities oh brief of counsel in this case. The presiding judge- submitted this question to the jury quite as fairly as the defendant could claim, and the jury, by their verdict, have convicted him of the fraud charged. Charge 9 should not have been given. — Ferguson v. Lowery, 54 Ala. 510.

We have singled out this charge for comment, not because we think it alone is erroneous. We thought it more clearly and patently faulty, and have therefore confined our remarks to it. We are not convinced the Circuit Court, in any of its. rulings, erred to the prejudice of appellant; but we consider it unnecessary to decide or discuss other questions.

Affirmed.