19 Ala. 219 | Ala. | 1851
This case was here-on two former occasions.— 10 Ala, 146; 12 ib. 768. But it was here on those occasions upon facts that do not appear in it now. It does not now appear that Boyd, the payee, ever endorsed the note; nor is there any evidence, except what the plaintiffs below introduced, and to that the defendants below demurred, and the court, upon the demurrer to the evidence, gave judgment against the defendants below, who are now the plaintiffs in error. To give the plaintiffs below the benefit of every fact, which their evidence conduced to prove, the question is, whether they made out a cause of action against the defendants. Their evidence proved, or conduced to prove a promissory note, payable to the order of Boyd; that this note by tlieir agents had been put into the hands of the defendants below for collection, who gave their receipt for the collection to the plaintiffs below; that the plaintiffs below, after the money had been collected by the defendants, caused it to be demanded of the latter, who failed to pay it, however, because they had already paid it to Boyd, which was before this suit was brought. Now, if it be conceded, that either the plaintiffs below', or Boyd, might have maintained an action against the defendants for the money collected, it would follow', that the latter might have made payment to cither, and the payment would discharge them. The note was. payable to Boyd, and the suit for its collection, if any, must have been in his name. There vras clear legal evidence, therefore, of his legal title and right to the money. If the defendants below had refused to pay the money to Boyd, on his demand, ho could have brought suit against them, and showing a clear legal right to the money, must have recovered. Against his legal right which appeared upon the face of the note, there was no evidence, save the fact that W allace and Lewis had possession of the note, and put it out for collection, taking a receipt for that purpose, in which however, there is no promise to pay the money to them, but it shows the legal rights of
As to the evidence by which it appeared that the defendants had paid the money to Boyd, it consisted of their own declaration ;• bnt the plaintiff below, in proving their declaration or admission of another fact, proved that also, and made no objection to. it; nor-was it in any manner contradicted or discredited. It was part of the entire statement made by the defendants below, which was proved by the plaintiff, and is therefore evidence, — (1 Greenl. on Ev. § 201;) more especially, as the plaintiffs below permitted it to go as evidence in the court below, having proved it themselves., In taking this evidence under the circumstances, by which the plaintiff below is concluded on a demurrer to his evidence, we are going, as I think, to the very verge of the law,, hut not beyond it.. The judgment-is reversed, and' according to. the settled practice of this-court, the cause is remanded-
