55 So. 828 | Ala. | 1911
Plaintiff in the court below, appellee here, sued defendant for the value of work and labor done by her testator for the defendant at the latter’s request. Defendant pleaded the general denial, payment, and the statute of limitations. Plaintiff offered evidence tending to show the performance of professional services by her testator as an attorney at law for the defendant on the latter’s request, and their value. These services covered a period of about one year, at the end of which time Judge Winter, plaintiff’s testator, accepted office as judge of the circuit court. About a year later on Judge Winter died. His acceptance of office presumptively took him out of the practice; but in order, as it seems, to create a presumption that there remained an unsettled account between him and defendant, or perhaps to strengthen a presumption which it is contended would have arisen in some shape without that fact, plaintiff showed that his services were continued
In Cook v. Malone, 128 Ala. 662, 29 South. 653, defendants brought a cross-action for the price of six bales of cdtton. The court instructed the jury that the burden of proof was on the defendants (cross-plaintiffs) to show that plaintiffs (cross-defendants) had bought the cotton and had not paid for it. This court said: “It is here insisted for defendants that the charge violated the rule stated generally in 3 Brick. Dig. 698, §§ 1 and 2,
An inspection of the transcript of the record in' the case of Rice v. Schloss, 90 Ala. 116, 7 South. 802, shows that all the transactions involved in that case were undisputedly credit transactions, and that, subject to plaintiff’s claim that the account had been stated, the controversy was about the correctness of the account offered in evidence. The opinion in that case holds only this: That in a suit on open account the burden is on the plaintiff to show the balance due after allowing credit for all payments. It thus might appear on the surface to go in one respect even further than we have previously gone in this case, in that it seems to hold that plaintiff cannot discharge his burden by showing a debt to have been once due, but that he must show the amount due at the time of the suit brought or at the time of the trial; that is, must negative the fact that no payments have been made since the debt fell due. The language Avas no doubt used in view of the common practice in suits of this character, in which the plaintiff is not ordinarily content to show that the defendant was once indebted, but undertakes to show an indebtedness, a, balance due, at the bringing of the suit or at the time of the trial. It may be conceded, however, that the case does not go to the precise proposition to Avhich it was cited in 166 Ala. 255, 51 South. 998, 53 South. 339; for it does not in terms say that in common assumpsit for goods sold and delivered or work and labor done the plaintiff may not recover on proof of goods sold and delivered or services rendered on request, without more.
At page 179 of 16 Encyclopedia of Pleading and Practice it is said that “the true rule or principle is that the plaintiff should prove, not nonpayment generally,
In respect to the other cases cited in 166 Ala. 255, 51 South. 998, 53 South. 339, we think it may now be conceded that they have only a remote bearing on the question at hand.
Aside from the distinction which seems to have been attempted in respect to suits on open accounts and suits on accounts stated, and apart from some slight misleading tendency, perhaps, in the use of the word “maturity,” which seems to imply a contract for future payment, a case which, once shown, would put the burden of proof of payment upon the defendant, we are of opinion that the gist of the decision in this case on former appeal is theoretically sound, and will be found to operate for the promotion of justice in practice. Counsel have cited a great number of cases to the effect that the burden of proving a. plea of payment rests upon the defendant. We have not taken issue with t-hat familiar proposition.' If there are cases which assert that a plaintiff establishes a case in common assumpsit when he shows goods delivered or labor done and their value, without more, counsel, after evident great research, has been unable to cite them. Assuming in a way to know the accuracy and universality of the knowledge to which that research must have led, and applying in some sort the maxim, “De non existentibus et de non apparentibus eadem est ratio,” we conclude there are no such cases. Fairly interpreted, the charge stated the law as we think it ought to be, and as it is.
If it be said that the use of the word “due” in the charge may have possibly produced the impression that the plaintiff carried the burden of proving' payment of a.debt which once existed, the judgment must still be reversed, for the- reason that there was no evidence au
Reversed and remanded.