61 So. 802 | Ala. | 1913
We will treat this proceeding as a submission by a complainant of his cause for final decree upon the bill of complaint and the answer to the bill of complaint. The'complainant in his bill of complaint waived answer under oath, and the answer was not sworn to. The complainant submitted his cause upon his bill and the following testimony, viz.: “The admissions contained in the answers of the re
The complainant in his bill of complaint does indeed allege that the said $1,800 was never paid by the respondent to the complainant’s testatrix, but this allegation of the bill of complaint does not shift, in this case and in this transaction, the burden of proof from the complainant to the respondent to show that said sum had not, in fact, been paid by the respondent to complainant’s intestate. This transaction between complainant’s testatrix and respondent was a cash transaction, and there is nothing surrounding the transaction itself indicating that the lands were sold on credit, or that any credit was in fact extended. The complainant in his bill of complaint alleges that the sale of the land by his testatrix was not what it professed to be viz., a cash sale; and, as he makes this allegation, the law casts upon him the burden of showing that the sale was not a sale for cash, but a sale on credit.
In Cook v. Malone, 128 Ala. 662, 29 South. 653, defendants' brought a cross-action for the price of six bales of cotton. The court instructed the jury that the burden of proof was on the defendants (cross-plaintiffs) to show that plaintiffs (cross-defendants) had bought the cotton and had not paid for it. This
In construing pleadings we must do so in the light of human experience and in the ordinary knowledge of business transactions, and we can find nothing in the defendant’s above statement or in any other part of. his answer indicating that his transaction with the complainant’s intestate was not, even to its very letter, what it purported to be, a cash transaction.
The answer of the respondent, when fairly construed, was a distinct and positive traverse of the material allegations of the bill of complaint, and as the complainant offered no evidence to sustain the allegations of his bill of complaint, the chancellor properly dismissed .the complainant’s bill of complaint. — Winter’s Case, 83 Ala. 589, 3 South. 235.
The. decree of the court below is affirmed.
Affirmed.