York Manufacturing Co. v. Bessemer Ice Manufacturing & Storage Co. , 111 Ala. 332 ( 1895 )

COLEMAN, J.

The Bessemer Ice Company was engaged in the business of manufacturing ice. The contract between the parties was entered into by -means of correspondence. The letters constitute the contract. By verifying the abstract of appellant and counter abstract of appellee, from the record, it appears that the York Manufacturing Company agreed “to remodel and change the ice machine,” then being used by the plaintiff, for an agreed amount, and guaranteed that it would make seven tons per day, during the months of July and August. The plaintiff paid the consideration. The action is in assumpsit, and the plaintiff, united in different counts the common counts and a special count for breach of contract. The court did not err in overruling the demurrers to the complaint, for a misjoinder of causes of action.

There is nothing in the abstract to inform us whether the case was tried with a jury, or by the court without the intervention of a jury. We incline to the view that, as there are no instructions of the court mentioned in either abstract, a jury trial was waived.

The principal exceptions are to the ruling of the court upon questions of evidence. When a case is tried by the court, without the intervention of a jury, the rule is that if the conclusion of the court is sustained by the legal evidence in the case, this court will not reverse, for erroneous rulings on questions of evidence, unless there was evidence erroneously excluded, which should have been admitted, and, if admitted, justified and required a different conclusion. — Holmes v. State, 107 Ala. 24.

Another rule is that when a case is tried, by a jury the tendencies of the evidence given in the abstract are sufficient tó test the correctness and relevancy of instructions given or refused to the jury; but when the facts are tried by the court, a mere tendency of the evi-. dence is not sufficient to put the trial court in error. Enough must appear affirmatively to put the trial court in error.

Very many of the objections to which exceptions were taken were mere general objections, the defendant not specifying any ground of objection. Again, unless the statement of facts in the abstract is sufficient to show the relevancy of questions, this court will not presume the exis’ence of such facts from the. questions propounded, unléss it is apparent from the questions themselves. Boland v. Louisville & Nashville R. R. Co., 106 Ala. 641.

There is evidence in the counter abstract, verified by the record itself, that the remodelled machine failed to turn out. either in quantity or quality, the ice guaranteed, and that the additions and changes made added nothing whatever to its value, and that defendants, though requested, failed and refused to comply with their covenant of guaranty. It is a very old and equitable rule of law that one person will not be permitted to acquire the goods or property of another and retain them, without paying a fair equivalent; but the principle is equally just that where one undertake? to add to the value of another’s property, for a compensation, and he adds nothing, and, as of the witnesses testiy renders it less valuable by the changes made, he is entitled to nothing. To hold otherwise would require the party to pay something for nothing. There is evidence to show that the defendant waived the use by plaintiff of the galvanized iron tank, and the judgment rendered shows that the defendant was allowed, as an offset, the amount agreed to be paid for the new shaft, evidenced by the note of plaintiff..

We find no error in the record, and the judgment must be affirmed.

Affirmed.