majority">EICE, C. J.—

Even if the court below was right in overruling the defendant’s demurrer to the evidence, it was in error in ascertaining the damages; for, upon a demurrer to evidence, if the court determines the issue in favor of the plaintiff, section 2352 of the Code requires that the damages, if unliquidated, should be ascertained by a jury; and here the damages are unliquidated. Handley v. Dobson, 7 Ala. 359.

[2.] The court below was right in overruling the demurrer to the evidence; because there was some evidence, from which the jury might legally have inferred and found, at least, that some of the articles charged in the account were sold and delivered to the defendant himself, and that therefore the plaintiff' was entitled to recover some damages, although nominal, as to them. And whenever, upon the evidence demurred to by the defendant, it appears to the court that the jury could legally find any damages, although nominal only, for the plaintiff, it is the duty of the court to overrule the demurrer.

[3.] Following the precedent established in Boyd v. *340Gilchrist, 15 Ala. 849, we shall not disturb the decision of the court below, in so far as it'overrules the demurrer to the evidence and ascertains that the plaintiff is entitled to recover some damages; because, to that extent, the decision is correct. But as the ascertainment of damages by the court below was unauthorized, the judgment, thus far, and to that extent, is reversed, and the cause remanded, that the court below may cause a jury to be empanneled to ascertain the damages.

As the cause must be remanded for that purpose, and as we cannot know what evidence may be adduced before the jury who may be empanneled to ascertain the damages, it is deemed by us the more safe and just course not to decide anything upon the evidence now before 'us, as to the liability of the defendant for articles bought by “his family.”

Citation profile

Relationships

How this case has been treated — in progress