23 Ala. 591 | Ala. | 1853
The defence attempted to be interposed to the liability sought to be enforced against the plaintiff' in error, is two-fold: 1st, the statute of frauds ; and 2d, that the condition attached to the promise, as shown by the evidence, has not been complied with.
The defendant below, after the testimony was all in, and consisting as it did of the evidence of one witness alone, requested the court to charge the jury, that, if they believed the evidence, the plaintiff could not recover. This charge the court refused, and the defendant excepted. The refusal to give this charge, in our opinion, raises the same question as if the defendant below had demurred to the evidence, and called upon the court to declare the law thereon. The question thus presented involves the two-fold aspect of the defenco above mentioned.
The plaintiff’s right to recover under the proof must rest either upon the fact that he had performed services for one o the Hollingsworths’ estate, or upon the promise that if Martin would produce the receipt of which he had spoken he would be indebted to him in that amount. The testimony is, that the plaintiff and defendant came into the office of witness together, «H
The evidence does not disclose who held the note at the time of trial; whether it was then in the possession of the plaintiff, or whether it was produced by the witness, it being still in his possession since it was left there by the defendant, does not appear. ■ We think the legal presumption is, that the note yet remains in the hands of the witness, until the contrary is shown. Assume this to be the fact for the present, and assume further that the plaintiff based his right to recover on the fact that he had rendered services to the estate of one or both of the Hollingsworths. It is shown that the defendant was the agent of the administratrix of one of those estates, but we do not see how this changes the legal aspect of the case. It woirld seem clearly, on this hypothesis, to be a demand of the defendant that he should pay the debt or demand of a third person, and any parol promise which he may have made in reference to that demand would not be binding upon the defendant, unless the same was in writing, and upon a legal consideration. Our conclusion, therefore, is, that if the plaintiff had declared for those services against the defendant, the claim would have fallen within the statute of frauds.
But suppose the plaintiff does not rest his right to recover against the defendant upon the fact that he rendered the above mentioned services for one or both of the estates above mentioned, but relies upon the admission of the defendant, that, if the plaintiff produced the receipt spoken of by the witness, “ he would be indebted to him” in the amount thereof. When the note and receipt are brought together they do not at all correspond; although we are bound, in the view’of the case which we are now taking, to give the plaintiff the benefit of every conclusion which the evidence fairly tends to prove, still we do not see how we can legitimately refer the receipt to the note, or in any way
Several other errors are insisted upon in argument, but we do not deem it important to consider them in detail. We simply remark, that, in charging the jury, it is the duty of the court to confine itself to the testimony before it. The judge ought not to assume that any fact is proved, unless there is some testimony tending to prove it, and then it should be left hypothetically to the jury, leaving it for them to say whether such fact is proved or not, or whether or not they believe the evidence. As the same things will not probably arise on another trial, we for • bear remarking further upon the other portions of the bill of exceptions.
Let the judgment of the court below be reversed, and the cause remanded.