125 Ala. 428 | Ala. | 1899
The plaintiff declared on the coxn.inon counts fox work and labor done and for legal sex*vices perfoxmied by the plaintiff for the defendant. The ■ defendant filed four pleas, all of which except the second are in denial of the plaintiff’s cause of action and amount .to the general issue. The second plea is a plea of payment. There are only three assignments of error in the record. The first is to the 'giving of the written charge No. 1, requested by appellee, plaintiff in the court below. ' The other two are the refusal of the court to give 2d and 4th charges requested 'by appellant.
The charge given at the instance of the appellee to which exception was reserved correctly states the law, 'both as to implied promise to pay a fair and reasonable •■compensation for services performed, as well as to the 'burden of proof. .It is a well settled proposition of law in this State that where in the absence of an express ' Contract valuable services are rendered by one person
The appellee claimed nothing under a special contract, but relied on the cornon counts for legal 'services rendered and work and .labor done. After he had made -out a prima facie ease under the evidence and rested .liis casé, the defendant 'sought to show a special contract between himself and the plaintiff and payment cinder •such contract. There was no attempt on the part of the •defendant to show payment except under the special contract, which he 'set up in his evidence. That the burden of proof was on him, under the plea of payment, is beyond controversy (Schullman v. Brantley, 50 Ala. 81), and if he could only show payment by 'setting up a special contract the burden of proof was equally upon him to show 'such contract. He 'sought to overcome the .prima facie case of the plaintiff by showing an independent fact, the existence of which he affirms, and the law casts upon him the burden of proving it when it is disputed. — Lehman v. McQueen, 65 Ala. 570. Where a debtor set up a partial payment and asserted that he directed appropriation thereof to a particular debt, it was held that the onus was on him to prove it. — Levystein v. Whitman, 59 Ala. 345. Also, where the validity of the payment set up 'by the debtor depended upon the authority of the person receiving it, the burden of proving the authority was held to rest upon the party setting up the payment. — McRea v. McDonald, 57 Ala. 423. What we have 'said above equally applies to charge number two requested by appellant, and which the court properly refused.
The appellee made no claim for any 'commissions on receiver’s certificates and offered no evidence looking to such commission, consequently charge number four requested by the appellant was properly refused as being .abstract. — 3 Brick. Dig. 113, § 106. We find no error in the record.
'The judgment of the court below will be affirmed.