Griffin v. Head , 122 Ala. 441 ( 1898 )

SHARPE, J.

— The verdict being sufficient as to some of tlie property sued for, it was competent, the plaintiff consenting, to render judgment for that part only; and the defendant not being injured by the exclusion from the judgment of the Nance press, such exclusion merely furnishes no cause for him to complain. — Alexander v. Wheeler, 78 Ala. 167. But after verdict upon the issues formed the court was without authority, in the absence of consent of parties, to sever the cause of action so put in issue and tried by the jury by rendering judgment for part of the property sued for, and continuing the cause in court for future litigation therein as to the remainder. Dale v. Moseley, 4 Stew. & Port. 371; Brown & Co. v. Peters, 94 Ala. 459.

It appears that the main issue under the special plea was as to whether the defendant had possession of the machinery sued for when the suit was brought; the plea averring that he had previously delivered it into the possession of the plaintiff, since which delivery he had not been in possession.

The note referred to in the first and second assignments of error, and which the plaintiff-' testified warned him to keep off the premises where the machinery in controversy was situated, was material evidence bearing on the question as to whether the defendant had delivered the property to the plaintiff or was still withholding it. The note was itsel f the primary evidence of such warning, and had the defendant been the first seeking to prove its contents the general rule would have required of him the writing or an unfruitful notice to the plaintiff to produce it, before permitting the proof to be by parol. But the plaintiff, having testified to his version of the note, could not properly take advantage of the rule to preclude the defendant from contradicting his testimony by evidence of the same class.' — Bogk v. Gassert, 149 U. S. 17; Barranco v. Towner, 32 N. Y. Supp. 914. The exclusion of evidence offered in disproof of the plaintiff’s testimony as to such warning was error.

The judgment must be reversed and the cause remanded.