All the questions raised in this case that are insisted upon in the brief of appellant’s counsel Avere, since this submission, decided in a similar case betAveen the same parties to the record, where the facts Avere not materially different from those here. — Smith v. Allen, 7 Ala. App. 397, 62 South. 296. On that authority the judgment here is reversed and the cause remanded.

Reversed and remanded.

ON APPLICATION FOE EEHEAEING.

It appears that the bill of exceptions in this case, unlike, in this respect, the case of Smith v. Allen, cited in the foregoing opinion, does not purport to set out all the evidence. Appellee contends that in this state of the record, the case having been tried without the intervention of a jury, it must be presumed that there was sufficient legal evidence before the court to justify its finding for and rendering of judgment in favor of appellee, Avho was plaintiff beloAV. We think there is merit in this contention (Donaldson v. Wilkerson, 170 Ala. 512, 54 South. 234; Lewis Land & Lumber Co. v. Interstate Lumber Co., 163 Ala. 593, 50 South. 1036; Shafer & Co. v. Hausman, 139 Ala. 239, 35 South. 691; Hood v. Pioneer Min. & Mfg. Co., 95 Ala. 462, 11 South. 10; Mobile & B. R. Co. v. L. & N. R. Co., 172 Ala. 314, 54 South. 1002; Prine v. Am. Cent. Ins. Co., 171 Ala. 349, 54 South. 547; Postal Tel. Cable Co. v. Hulsey, 115 Ala. 193, 22 South. 854; Evansville, P. & T. R. P. Co. v. *373Slater, 101 Ala. 245, 15 South. 241; Hunt v. Johnson, 96 Ala. 130, 11 South. 387), and the application for rehearing is therefore granted, the judgment of reversal is set aside, and the judgment of the lower court is affirmed.

Affirmed.