Opinion
6 Div. 172.
October 11, 1928.
Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.
J. S. McLendon, of Birmingham, for appellant.
Failure of plaintiff to prove a joint liability precludes a recovery against either defendant. Haines v. Cunha, 217 Ala. 73, 114 So. 679; Crawford v. Mills, 202 Ala. 62, 79 So. 456.
Barber Barber, of Birmingham, for appellee.
In support of the correctness of the judgment, counsel cite Ingram Land Co. v. Moore, 213 Ala. 19, 104 So. 134.
The decisions in Ingram Land Co. v. Moore, 213 Ala. 19, 104 So. 134, and Gulf City Const. Co. v. L. N. R. Co., 121 Ala. 621, 25 So. 579, on which was rested the decision in Ingram Land Co. v. Moore, 213 Ala. 19, 104 So. 134, were modified in Cassimus v. Vaughn Realty Co., 217 Ala. 561, 117 So. 180.
Whether or not, under the evidence and Dean's pleas, he should have been given the affirmative charge under the foregoing authority, it is not necessary to declare. He and the Ingram Land Company have made common cause by their pleadings and joint request for affirmative instruction, and the latter was not entitled to such instruction under his pleading and the evidence; hence the request for affirmative instruction was properly refused by the trial court. There was no motion for a new trial by either of the defendants, and it results that the judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.