57 Ala. 179 | Ala. | 1876
If the Circuit Court took any action on the-defendant’s demurrer, it is not shown by the record. We will not consider any question on the sufficiency of the complaint.
R. M. Waddill, appellant’s intestate, executed a receipt in the following form: “$20. Received of John E. Conoly twenty dollars, for William Waddill. July 28th, 1868. (Signed), R. M. Waddill.” The complaint contains two counts: the first special, declaring on the receipt, and averring that “the defendant’s intestate never delivered said sum of money to said Wm. Waddill, and plaintiff demanded said sum of money of defendant before this suit was brought;” the second count is in the common form for money had and received. The present action was brought before the justice of the peace in January, 1875 — more than six years after-the said receipt was given. The only evidence in the cause was the said receipt, and testimony by plaintiff, Conoly, that at the time of the execution of said receipt he did not owe. Wm. Waddill any money, and that before suit brought, he-had demanded the money of Haney, administrator of R. M... Waddill’s estate.
The prima facie intendments arising out of the receipt given in evidence, are, that Conoly owed the money to Wm. Waddill, and paid it to R. M., to be paid to William. If, before demand, or notice by Conoly, R. M. Waddill paid the-money over to Wm. Waddill, then Conoly could not maintain an action against R. M. This proposition is too manifestly clear to require argument. On the other hand, if R. M. Waddill failed to pay over to William within a reasonable time, then Conoly can maintain an action against him for the breach of his contract.—See Mardis v. Shackleford, 4 Ala. 493, 506. The question presented by this record, is on theffacts in this case, upon whom does the burden rest of proving that the money was or was not paid by R. M. to Wm. ■Waddill?
The general rule of law is, that negative averments in pleading need not be proved.—Carpenter v. Devon, 6 Ala. 718; Walker v. Palmer, 24 Ala. 358; 1 Greenl. Ev. § 74.
According to the face of the contract in the present case, the money was confided to R. M. Waddill to be paid to William. The possession of the receipt by Conoly raises no presumption or inference that R. M. Waddill failed to pay the money over. If he did so fail for the long period which elapsed after he received it, he was guilty of a gross breach of confidence. We hold that in such case it was the -duty of the plaintiff to make at least some proof that R. M. Waddill had failed to pay over, before the defendant should be required to adduce any proof on the subject.—Burdine v. Roper, 7 Ala. 466; Wilson v. Sergent, 12 Ala. 778; see, also, Weeks v. Lowe, 19 Ala. 25; Branch Bank v. Parrish, 20 Ala. 433; Rutherford v. McIvor, 21 Ala. 750.
We think this case very unlike that of Vincent v. Rogers, 30 Ala. 471. The charge given withdrew from the consideration of the jury all inquiry as to whether the money had been paid over to Wm. Waddill or not. This was an error, for which the judgment of the Circuit Court is reversed and the cause remanded.
