Cobb v. Malone & Collins , 87 Ala. 514 ( 1888 )

STONE, C. J.

The record before us contains a meagre presentation of the facts, and fails to affirm it contains all the evidence. In such case, it is our duty to indulge every reasonable intendment in favor of the correct ruling of the trial court, which is compatible with the averments and recitals found in the record. Error can not be presumed, but must be affirmatively shown.' — 3 Brick. Dig. 406, § 40.

One of the grounds, if not the main ground of defense in this case, was, that after Crutchfield had sold to Malone & Collins the bale of cotton on which Cobb had a mortgage lien, Crutchfield executed a second mortgage to Cobb, conveying additional property, on an agreement that the giving of this additional security “was in settlement of said matter of the bale of cotton involved in this suit.” This was the testimony of Crutchfield; and that pursuant to it he gave the second mortgage, which was put in evidence. True, there was conflict in the testimony, and plaintiff’s proof negatived the extent of the agreement; and there was also a denial of the authority of the agent to make the alleged agreement. There was, however, some testimony tending to show Cobb’s ratification of the agreement. — 3 Brick. Dig, 20, §§ 17, 19, 20. Each of these matters of controversy was a question for the jury.—Carew v. Lillienthall, 50 Ala. 44.

All the testimony objected to, tended to prove the defense alluded to above. It was not so entirely insufficient in any of its bearings, as to call for its rejection as matter of iaw. Whether it authorized the finding of all the facts necessary to the verdict rendered, could have been raised on proper charges requested. It is not shown that charges were given or requested, and we must presume that the trial court gave proper instructions. — 3 Brick. Dig. 406, § 43.

If the jury believed the testimony of Crutchfield, and further found that Cobb either authorized, or with knowledge ratified the act of his agent, then the second security was a sufficient consideration for the surrender of his lien on the bale of cotton, and constituted the second a valid, substitutionary contract, healing the breach of the first. The second mortgage bears date in September, 1887, and the present suit was brought afterwards.

Affirmed.