McFarland v. Dawson

128 Ala. 561 | Ala. | 1900

DOWDELL, J.

The plaintiff declared on the common counts for work and labor done and for legal services performed 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 written charges requested by appellant.

The charge given at the instance of the appellee to which exceptions were 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. lit is a well settled proposition of law in this State that where in the absence of an express contract valuable services rendered by one person to another, which are knowingly accepted, the law will imply a promise to pay a fair and reasonable compensation for such services. — Hood v. Logan, 102 Ala. 228; White v. Brewer, 56 Ala. 570.

The appellee claimed nothing under a special contract, buf relied on tlie common coipits for legal services rendered and work and labor done. After lie had made out a primo, facie case under the evidence and rested his case, the defendant sought to sIioav a special contract betAveen himself and the plaintiff and payment under such contract. There Avas no attempt on ¡tire part of the defendant to «how 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 (Schulman 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 lii-m to show such contract, lie 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 tAA’.o 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.