Owen v. Henderson, 7 Ala. 641

7 Ala. 641 | Ala. | 1845

COLLIER, C. J.

— The replication, it is said, should not be double, or in other words, contain two answers to the same plea; although it may put in issue several facts, where they amount to only one connected proposition, and it may contain distinct answers, to different parts of a plea divisable in its nature. So far as the replication sets out a conditional promise to pay within six years, it is certainly good; but the latter branch, which insists that the defendant held the money in trust for the plaintiff, is bad. It is difficult to conceive of a trust that could be enforced at law, against which the statute of limitations would not run; but be this as.it may, the character of the trust should be set out, that the Court might see whether it was entitled to the exemption claimed.

It is difficult to conceive, what it would avail the plaintiff to show, that the defendant undertook to pay the amount expressed in the receipt, into the Branch Bank at Decatur. If intended to vary the legal effect of the writing, it was clearly inadmissible. The interpretation of the defendant’s contract as evidenced by the paper, is an acknowledgment, that he had received two hundred and fifty dollars, and would pay that sum to the plaintiff when required, or immediately. It is certainly very awkwardly expressed, but the words, “ to be paid in hand,” must at least mean to be paid to the party advancing the money; whether presently or not, is wholly immaterial, as the failure to stipulate a time, makes it due, as soon as the writing was delivered.

If the defendant had paid the money into Bank, by the plaintiff Js directions, he might have shown it as a defence. So, if he promised thus to dispose of it, after the writing was made, the plaintiff might, perhaps, show such promise, as an excuse for not suing until time was afforded for that purpose. What that time should be, would of course depend upon the distance of the defendant’s residence from the Bank, its accessibility, &c.

The contract, we have seen, was an undertaking to pay the money presently, or on request; the charge of the Court, that it was not due until demand made, cannot be supported. The duty imposed upon the defendant being such as we have indicated,-the statute of limitations began to run from the date of his promise. [See Mardis’ adm’rs. v. Shackleford, 4 Ala. Rep. 493; Johnson v. Johnson, 5 Ala. Rep. 90.]

The facts stated in the bill of exceptions, and the ruling of the Circuit Court, do not require us to give to this case a more extended consideration. The consequence is, that the judgment must be reversed and the cause remanded.