This is an appeal by a residential contractor from a final judgment in a suit for breach of contract.
On May 18, 1981, Jones filed a complaint seeking cancellation of the deed and monetary damages on the basis of breach of contract by Wilson. The answer denied the breach of contract and counterclaimed for monetary damages in an amount equal to the cost of the house minus the amount of the earnest money and the value of the Jones lot.
On July 19, 1982, Judge William Barber heard the case without a jury and his judgment reads in part:
Wilson's arguments are predicated on the assumption that breach of contract has been established. The trial court's judgment does not reflect a determination of this issue.
We have inspected the record and find only "PLAINTIFF'S AND DEFENDANT'S EXHIBITS" consisting of house plans, specifications, licenses issued, other documents pertaining to the building of the residence, and payments of bills by Wilson. We presume that Judge Barber allowed the retention of the earnest money as compensation of Wilson's expenses. There is no transcript, part of a transcript, or a statement of the evidence of oral testimony in compliance with ARAP Rule 10(d). We can only speculate as to why the transcript is absent.
When ore tenus evidence is presented in a non-jury case the trial court's findings of fact and its conclusions carry the presumption of correctness and the judgment will not be disturbed unless shown to be palpably wrong or manifestly unjust.
The complete absence of a transcript presents us with no reviewable issue. We can only affirm. Smith v. Haynes, 364 So.2d 1168 (Ala.1978).
TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur.