Gingold v. Coplon

Gingold v. Coplon. Assumpsit. (Decided May 21, 1914. 65 South. 328.) 1. Appeal and Error; Review; Finding of Court or Jury. — Unless plainly and palpably contrary to the great weight of the evidence, the judgment of the trial court sitting without a jury based on evidence ore tenus will not be disturbed on appeal. 2. Estoppel; Pleading; Necessity. — Estoppel must be pleaded in order to be available as a defense. Appeal from Birmingham City Court. Heard before Hon. H. A. Sharpe. Assumpsit by D. Coplon against Sam Z. Gingold. Judgment for plaintiff and defendant appeals-. Affirmed. Transferred from Court of Appeals under § 6, Acts 1911, p. 451. Leader & Ewing, for appellant. Counsel discuss the errors assigned with the insistence that they should bring about a reversal, but they cite no: authority in support thereof. Baugh & Emerson, for appellee. Negotiable instruments are presumed to be based upon sufficient and valid consideration, and import prima facie a consideration. — Martin v. Foster, 83 Ala. 13; 8 Cyc. 222-5-7-; § 4989, Code 1907. - The judgment was not clearly and palpably contrary to the weight of the evidence. — Cobb v. Malone, 9 South. 738. [MAJORITY — ANDERSON, C. J. —] ANDERSON, C. J. — This case was tried by the judge of the city court, without a jury, and the evidence was ore tenus, and, such being the case, the trial court had the advantage of this court of seeing and hearing the witnesses, and its judgment will not be disturbed by this court, unless plainly and palpably contrary to the great weight of the evidence.—Thompson v. Collier, 170 Ala. 469, 54 South. 493, and cases there cited. We are not prepared to say that the finding of the trial court was so contrary to- the great weight of the evidence as to warrant this court in reversing its judgment. The suggestion of an estoppel is made in .brief of counsel; but we find no plea in the record invoking such a defense. The judgment of the city court is affirmed. Affirmed. McClellan, Sayre, and de Graffenried, JJ., concur.