108 Ala. 656 | Ala. | 1895
The appellee, Sarah A. Blackman, sued the defendants as administrators of the estate of N. J. Ross. The complaint contained two counts, the first counting on an account, and the second for money
To the complaint the defendants pleaded only the general issue. There was no plea of payment or set-off. The general issue does not put in issue, a fact the burden of proving which is upon the defendant. It only puts in issue the facts to be proven by the plaintiff in order to support his action as laid in the complaint.
The court did not err in allowing the introduction of the final decree of the probate court, nor was there error, in permitting the plaintiff to prove, that no money was actually paid to her in person or by attorney in satisfaction of the decree rendered in her favor. — Gamble v. Whitehead, 94 Ala. 335. It was competent for her to show by legal evidence, that the defendants’ intestate received the benefit of these decrees under the agreement or understanding that he would pay her the amounts, with interest.' The court was clearly in error, in allowing the plaintiff to testify to the contents of letters, alleged to have been received by her from the deceased, in which, she testified he admitted his indebtedness to her and agreed to pay her. It was proper for her to prove by her own testimony the reception of letters and their destruction. This was necessary and preliminary to the proof of their contents. The contents, however, were clearly within the exception which prohibits any party from testifying against another as to any transaction with or statement by any deceased person, whose estate
There was no error in giving the first and second charges requested by the plaintiff when referred to the pleadings.
We are of opinion the court erred in giving the third instruction. This charge confines the jury to the testimony of the witnesses. There was record evidence, and letters of the plaintiff before the jury, which were competent, and which the jury ought to have considered. The charge was calculated to impress the jury with the conclusion that only the testimony of witnesses who were examined should be considered.
We are of opinion the third charge requested by the defendant, should have been given. There was no evidence to sustain the count for money had and received by the intestate for the use of or on account of the plaintiff. Under her theory, the transaction was a mere loan under an agreement or promise to pay back with interest. Proof of a loan of money will not support an action for money had and received against the borrower.
There was evidence tending to show, that the intestate furnished the money to plaintiff to purchase the Warlick interest in the estate for him, and that his money was used in the purchase, and that the assignment was made to plaintiff, to be used by the intestate, in the manner and for the purpose for which it was used. If the jury should find this to be the correct phase of the case, the plaintiff would not be entitled to recover this amount, unless by some subsequent transaction the intestate became bound for it.
For the errors pointed out, the case must be reversed and remanded. ”
Reversed and remanded.