Ponder v. Morris & Bros. , 152 Ala. 531 ( 1907 )

DOWDELL, J.

Tbe demurrer interposed to tbe amended complaint was without merit.

Tbe case was tried by the court without tbe intervention of a jury. Tbe testimony of tbe witnesses was delivered ore Ion us. Tbe evidence was in conflict. While, under l he practice act of the city court of Birmingham (Acts 1888-89, p. 998, § 11), tbe conclusions and judgments of the trial court upon tbe evidence may be reviewed on appeal without any presumption in favor of tbe ruling of tbe court below on tbe evidence,' yet this court should not disregard tbe fact that tbe trial court, in having tbe witnesses in person before it, bad better opportunity in determining what weight should be accorded to tbe testmony of tbe witnesses, respectively.

Notwithstanding tbe wife, under our statute, may contract and be contracted with, and be sued upon such contracts, still this does not take away tbe common-law liability of the husband for necessary comforts and supplies furnished tbe wife, suitable to their condition and degree in life. — Gafford v. Dunham, 111 Ala. 551, 20 South. 346.

There was evidence tending to support every essential averment in the complaint, and while there is a conflict as to whom tbe credit was given, whether to tbe wife or to tbe husband, and as to whether the account Lad been paid or not, we are not prepared upon the whole evidence to say that the trial court, in its judgment and conclusion, was in error. The judgment appealed from will be affirmed.

Affirmed.

Tyson, C. J., and Anderson and Denson, JJ., concur.