Rasberry v. Pulliam

78 Ala. 191 | Ala. | 1884

CLOPTON, J.

Section 1546 of the Code provides: “No person must obtain a judgment in any court of this State, upon any account, any item of which is for vinous or spirituous liquors in less quantities than one quart, without producing to the court a license showing his authority to retail at the date of such item.” A judgment rendered on such account, without the production of a license, is not void ; but, like other judgments, is conclusive of the rights of the parties — that the money is due by the defendant to the plaintiff. The statute gives the defendant matter of defense, which he may waive, if he chooses. When the suit is on a note not disclosing the consideration, the defense must be made by special plea, and without such special plea is considered as waived. Although ' such plea necessarily asserts a negative — want of license — it is not incumbent on the defendant to prove it ; but, it being made to appear that an item of the account, for which the note was given, is for vinous or spirituous liquor in less quantity than a quart, the burden is cast on the plaintiff to produce to the court a license, showing his authority to retail at the date of the item. No special plea, setting up the defense of the statute, was filed by the defendant. Pleas of want of consideration, and of failure of consideration, do not present the defense of the illegality of one or more items of the account.

After the plaintiff had introduced the note declared on, he offered an itemized account, for which the note was given, some of the items of which were for spirituous liquors in less quantities than a quart. To the introduction of the account the defendant objected, and moved to exclude it from the jury. His objection was sustained, and the account excluded. After the account was excluded on the objection and motion of the defendant, and was not before the court, it was not permissible for him to select items of the account, and put them in evidence as the consideration of the note. The account was admissible, as an admission by plaintiff of the consideration of the note; but it must be taken all together. When the plaintiff testified that the note was given in consideration of goods to be advanced in .future, and that he had advanced goods and merchandise to the amount of the note, the defendant could, on cross-examination, have called for the items, and thus have gotten them before the court; but this was not done.

The defendant did not propose to show that the account, to which the receipt was attached, and at the foot of which it was written, entered into the consideration of the note, or was a payment thereon. The only purpose for offering the receipt was to obtain a credit for the amount. Without evidence connecting it in some'way with the note, either as a payment thereon, or payment for some of the merchandise for which the note was given, it was irrelevant. No court will permit a defendant to detach, in its presence, a receipt from an account, for the payment of which it was given, and introduce it, thus detached, as evidence of a payment on another and1 different claim, without any explanation of the circumstances under which the receipt was given.

The note and the admitted payments being the only evidence, there is no error in the charge of the court.

Affirmed.