Van Hooks, Taylor v. (Ala.) .1030 Union Bank & Trust Co., Powell v. (Ala.) 123 Van Vleet v. Evangeline Oil Co. (La.)... 343 Wilson, Birmingham Waterworks Co. v. Williams, Murphy v. (Ala. App.) 109 Williams v. Penton (Ala. App.). .1031 Williams, State v. (La.) 891 Williford, Clark-Ray-Johnson Co. v. (Fla.) 938 Wilson, In re (La.)....... 296 Vasquez, Harry C. Meyer Co. v. (La.). 619 (Ala. App.). . . 760 Vaughan, Temple v. (Miss.) 614 Wilson v. State (Ala. App.). 114 Vicksburg Traction Co. v. Warren Coun Wilson, State v. (La.) 296 ty (Miss.). Villamil, Fisher v. (Fla.) 559 Windham, McIntosh v. (Ala.) .1020 Vinegar Bend Lumber Co. v. Morton Lum Wofford, State v. (Miss.) Wolfe, Millsap v. (Ala. App.) Wood v. Harper (Ala. App.). Woodberry, Harrell v. (Fla.). 297 Woodruff, Allen v. (Ala. App.) 247 Wadkins, In re (La.).. 388 Woolsey. Nabors v. (Ala.) 533 Wadkins v. Producers' Oil Co. (La.). 388 Wadsworth v. Sellers & Orum Co. (Ala. App.) Wakeley, Longdon v. (Fla.) 408 Wall v. State (Ala. App.). 57 Wallace, Cox v. (Miss.) 461 Wallace, Southern R. Co. v. (Ala.). 714 W. R. Long & Sons, Gann v. (Ala. App.) 606 W. S. Biles & Co. v. Shackelford (Miss.).. 456 W. T. Adams Mach. Co. v. South State Lumber Co. (Ala. App.) 826 Ward v. German-American Lumber Co. 566 Warren v. State (Miss.). 350 Warren County, Vicksburg Traction Co. v. Yazoo & M. V. R. Co. v. Citizens of Charleston (Miss.) 670 (Miss.) Washburn-Crosby Mill. Co., H. M. Judge Yazoo & M. V. R. Co. v. Fletcher (Miss.) 667 Yazoo & M. V. R. Co. v. Lakeview Traction Co. (Miss.)... 393 Yazoo & M. V. R. Co., Mississippi R. R. Commission v. (Miss.) 668 Yazoo & M. V. R. Co., Mississippi R. R. Commission v. (Miss.) 670 886 Weekly v. Louisiana Western R. Co. (La.) 889 451 Weir v. Gadsden (Ala. App.). .1031 Yazoo & M. V. R. Co. v. Moore (Miss.). 670 456 605 303 ........ 349 594 Wells Fargo & Co. Exp., In re (La.)..... 257 | Zackary v. Georgia, F. & A. R. Co. (Fla.) 686 THE SOUTHERN REPORTER VOLUME 56 (2 Ala. App. 407) THOMAS v. SMOOT. (Appellate Court of Alabama. June 30, 1911.) 1. CONTRACTS ( 318*)-ACTIONS-DEFENSESVIOLATION BY PLAINTIFF. Plaintiff may not recover on a contract which he himself has violated. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 1508-1527; Dec. Dig. 318.*] 2. CONTRACTS (§ 274*)—RESCISSION. Plaintiff cannot recover upon a contract which had been rescinded by mutual agreement. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 1202-1206; Dec. Dig. § 274.*] 3. LANDLORD and Tenant (§ 183*)—VIOLATED AGREEMENT. Though plaintiff violated or rescinded an express contract with defendant for the latter's use of a building, he could recover for the value of its use and occupation, if defendant in fact occupied it. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. 736-740; Dec. Dig. 183.*] 4. TRIAL (§ 139*)-DIRECTION OF VERDICT. A verdict should not be directed when the right of recovery rests upon the credibility of oral testimony, the credibility of witnesses and the weight of their testimony being for the jury; but where one party is entitled to a verdict, whether the oral testimony is believed or re jected in whole or in part, or where a part of the evidence is documentary, the genuineness of which is established, and the rest is oral, and one party is entitled to a verdict, whether all or a part of the oral evidence is believed or disbelieved, the court may, upon request, direct a verdict for such party, so that where plaintiff was not entitled to recover, whether all of the evidence was believed or all disbelieved, or a part believed and the other disbelieved, the court properly directed a verdict for defendant. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 338-341; Dec. Dig. § 139.*] Appeal from Circuit Court, Limestone County; D. W. Speake, Judge. Action by R. L. Thomas against J. G. Smoot. From a judgment for defendant, plaintiff appeals Affirmed. terms of an express contract. The plaintiff's evidence failed to show his right to recover of the defendant upon the terms of an express contract, but did have some tendency to show a right of recovery in an action for the use and occupation by the defendant, durThere was some evidence tending to show ing a certain period, of plaintiff's mill. that defendant rented from plaintiff a mill for a period of eight months; that defendant failed to execute two notes for the rent of the mill, as he agreed to do; and that, long before the period for which the mill was rented had expired, the plaintiff notified the defendant to cease the use of the mill, and that thereupon the defendant did so. No recovery can be had upon a contract, except in pursuance of its terms. [1-3] In the present case, if there was a contract, the plaintiff either altered or breached it, or the parties, by mutual agreement, rescinded it. The plaintiff, therefore, could not recover of the defendant in a suit on the contract which he himself had violated, or, by mutual agreement with defendant, had rescinded. His right of action, if he possessed any, was for the value of the use and occupation of his mill by the defendant, if the defendant in fact used and occupied it. Worthington v. McGarry, 149 Ala. 251, 42 South, 988. The above being true, the court properly gave to the jury, at the written request of the defendant, the charge that if they believed the evidence they should find for the defendant. 2. The jury having retired and having remained out for a period without bringing in a verdict, the judge ordered the jury to return into court, and thereupon the follow ing occurred: The court asked the jury if they had agreed upon a verdict. One of the jurors replied: "We have not." Thereupon the Presiding Judge said, "What is the mat M. K. Clements, for appellant. W. R. ter?" to which one of the jurors replied, "We Walker, for appellee. do not understand from the charge what evidence you mean we must believe." There DE GRAFFENRIED, J. The complaint, upon the Presiding Judge said: "I mean it in each of its counts, predicates the plaintiff's is your duty, under the charge, to find for right to recover of the defendant upon the the defendant." Thereupon the jury retired •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes and returned into court a verdict for the de- part of it was believed and the other part fendant. [4] In this state the court has no right to direct a verdict when the right of recovery, either of the plaintiff or of the defendant, rests upon the credibility of oral testimony. "When a question of fact is involved, dependent upon oral testimony, the credibility of the evidence must be referred to the jury, and a charge assuming the credibility of the testimony is erroneous, though it is clear and undisputed." Davidson v. State, 63 Ala. 432. The above not only is the rule, but it should be the rule. A contrary doctrine would tend to take from the jury its unquestioned and exclusive right, i. e., the right to pass upon the credibility of the witnesses and the weight to be given their testimony. It is possible for a plaintiff, through perjury, to make out his case, under the pleadings, against the defendant, and the defendant may not, in such case, be able to offer any testimony to rebut the plaintiff's evidence. In such a case the court under the law, would be guilty of reversible error, if it refused, at the request of the plaintiff, to charge the jury that if they believe the evidence they must find for the plaintiff. But there is no law in Alabama requiring a jury, under such conditions, if they disbelieve the evidence, or a material part of it going to the right of the plaintiff to recover, to so find by their verdict. In many instances the law provides that the proof of certain facts by a plaintiff entitles him, prima facie, to recover, and it is possible for a defendant against whom such a prima facie right of recovery is made out to overcome such prima facie right by the evidence of witnesses who, on account of bias, ill will, or interest, perjure themselves, and the plaintiff may be so situated as to be unable to rebut such evidence, and in such a case, under the law, the court might be required to charge the jury that if they believed the evidence they must find for the defendant. No law, however, of this state requires a jury to find a verdict for a defendant under such circumstances. disbelieved, the plaintiff was not entitled to recover. The court committed no error in stating, under the circumstances as they appear in the record, to the jury that it was their duty to find a verdict for the defendant. Yates v. Huntsville Co., 39 South. 647. There is no error in the record, and the judgment of the court below is affirmed. Affirmed. (1 Ala. App. 593) TAYLOR v. WHITE & AWBREY. (Appellate Court of Alabama. May 30, 1911.) Cent. Dig. § 760; Dec. Dig. § 217.*] 2. INFANTS (§ 102*)-ACTIONS-PLEA OF IN- Where there were in evidence admissions of defendant tending to rebut his plea of infancy, defendant's request for general affirmative charge was properly denied. [Ed. Note.-For other cases, see Infants, Cent. Dig. §§ 296, 297; Dec. Dig. § 102.*] Appeal from Circuit Court, Randolph County; S. L. Brewer, Judge. Action by White & Awbrey against W. G. Taylor. From a judgment for plaintiffs, defendant appeals. Affirmed. R. E. Taylor, for appellant. R. J. Hooten, for appellees. PER CURIAM. [1] Under the defendant's plea of infancy, on which issue was joined, it was competent to prove statements made by the defendant to the plaintiffs, prior to his entering into the contract sued on, that he, the defendant, was over 21 years of age. The court committed no error in overruling defendant's motion to exclude this evidence. [2] This evidence being in, the general charge, requested by the defendant on the issue under the plea of infancy, was properly refused. These are the only questions presented on the record, and, no error appearing, the judgment is affirmed. Affirmed. NOTE. The above opinion was prepared by Mr. Chief Justice Dowdell, of the Supreme Court, before the transfer of the case to this court, and is adopted by this court. (1 Ala. App. 470) In cases, however, where, if all the oral testimony is believed, or none of it is believed, or if any part of it is believed and the balance is rejected, the plaintiff or defendant is entitled to a verdict, the court may, on proper written request, direct a verdict. Where a part of the evidence in a case consists of documentary evidence, the genuineness of which is unquestioned, and the rest of the evidence is oral testimony, then, if the case is such that if all or any part of the oral H. M. JUDGE & CO. v. WASHBURN-CROSevidence is believed or disbelieved one of the parties to the suit is entitled to recover, the court may, upon proper request in writing, direct a verdict in favor of such party. If all of the evidence in this case was believed, or all of it was disbelieved, or any BY MILLING CO. NESS. OF Though Code 1907, § 6112, provides that a foreign or domestic corporation may be sued in |