Scruggs v. Bibb

33 Ala. 481 | Ala. | 1859

WALKER, J.—

The plaintiff proved by his witness, Patton, that he called upon the defendant in Mississippi, and mentioned the subject of the plaintiff’s claim, which he had in his possession ; and that the defendant said, he intended to start to Huntsville in a few days, and would there see the plaintiff. After the introduction of that proof, it was permissible for the defendant to show, that he said, at the same time, he had a receipt against the claim, and was going to Huntsville and would settle the matter there. This last evidence was a part of the same conversation, i'n which the declaration proved by the plaintiff was made, and was explanatory of that declaration; and it was, therefore, admissible.—Bradford v. Bush, 10 Ala. 386; Wilson v. Calvert, 8 Ala. 757; Rogers v. Wilson, Minor, 407.

[2.] If the evidence was inadmissible for the purpose of establishing a receipt, it was necessary for the plaintiff to have moved the court to limit, by appropriate instructions to the jury, the purposes for which the evidence could be legitimately considered; otherwise, the court cannot be convicted of error.—Cook & Scott v. Parham, 24 Ala. 21.

[3.] We suppose the court charged the jury, that upon the evidence the award in proof was void, because the defendant had no notice of its rendition. In that charge the court erred. The parties were both present when the arbitrators were sitting upon the case, and the time for the rendition of the award was enlarged at the defendant’s request; and the award was not rendered, until after the expiration of that time. The defendant was not therefore entitled to notice of the making of the award, unless it had been stipulated or provided that he should have such notice.—2 Phillips on Evidence, 81; Mobile Bay Road v. Yeind, 29 Ala. 325; Stein v. Burden, 30 Ala. 270.

[4.] A receipt, dated after the demand sued upon became due, in full of all claims due up to its date, was certainly presumptive evidence of the payment of the demand; and the court did not err in so instructing the jury. The direction to the jury, that it was presumptive evidence of the payment of the note, did not involve the assertion that it was conclusive evidence of such payment, or deny to the evidence controverting the presumption its due weight. If the plaintiff regarded the charge as ambiguous, and tending to mislead the jury, it was his province to protect himself by asking an explanatory charge.—Partridge v. Forsyth, 29 Ala. 200.

The plaintiff asked the charge, that the jury might look to all the evidence in the cause, to see if the note in suit was embraced in the settlement, on which the receipt above named was given.” This charge should have been given. Whether the note was embraced in the settlement, upon which the receipt was given, was a material inquiry; and it was proper for the jury to determine that question in the light of the entire evidence.

The receipt adduced being primafacie evidence of the payment of the note, the onus was upon the plaintiff to overcome that prima-facie defense; and in determining whether that primafacie case was overcome by satisfactory evidence, it was the duty of the jury to scan the entire evidence. The last charge given by the court was consistent with the principle thus stated, and the ’court committed no error in giving it.

The judgment of the court below is reversed, and the ■ cause remanded.