60 Ala. 498 | Ala. | 1877
The action was commenced by the appellee, and the complaint contains only the common counts in assumpsit. The pleas were the general issue, payment, and set-off. The bill of expeptions contains all the evidence ; and it is apparent that the controversy, in the court below, was narrowed to the single inquiry, whether the defendant had, as the agent of the plaintiff, collected a claim of which the plaintiff was the beneficial owner, and which he had left with the defendant for collection, against the Louisville & Nashville Bailroad Company. The Circuit Court charged, that if the defendant had collected the money on the claim, the plaintiff was entitled to recover it. The error of the charge, now asserted, is, that a principal cannot sue his agent, for money collected, without having first requested or demanded payment of it, and it entitled the plaintiff to a recovery without evidence ©f such demand. The principle is correct, and has its foundation in the corresponding duties of the relation of principal and agent. The principal cannot place the agent in default, subject him to an accusation of infidelity, and. to the costs and vexation of suit, unless he first demands of the agent a performance of his duty. But, if the agent denies his liability to the principal, or otherwise shows a demand would have been fruitless, the law relieves the principal from the duty of making it.
Instructions to a jury, given on the trial of a cause, must be construed in connection with the evidence; and instructions may be correct, when read in the light of the particu
The charge requested by the defendant excluded from the consideration of the jury all the circumstantial evidence, which tended to show that he had collected the money. A court does not err, in refusing an instruction which withdraws legal evidence, however inconclusive or weak it may be, from the consideration of the jury.
If, as is now insisted, the charge given on the request of the plaintiff was abstract — unsupported by evidence, and directing the attention of the jury to an immaterial inquiry; to authorize a reversal, it must appear the jury were thereby misled, to the prejudice of the appellant. — 1 Brick, Big. 336, §11. It seems to us, that directing the attention of the jury to the inquiry, whether the plaintiff had or not collected the money of the railroad company, could not possibly have worked any injury to the defendant.
Let the judgment be affirmed.