Stanton v. Baird Lumber Co.

132 Ala. 635 | Ala. | 1902

DOWDELL, J.

— The complaint contained four counts, but no effort was made by the plaintiff to prove either of the last three. The only evidence offered was directed to the first count, which claimed for money loaned by Fullerton to the defendant and alleged to have been transferred to the plaintiff. The defendant offered no evidence, and upon the conclusion of the plaintiff’s evidence, on motion of the defendant, the court excluded all of the evidence, on account of which ruling the plaintiff was forced to make a non-suit.

There is hut one assignment of error and that goes to the. action of the court in excluding the plaintiff’s evidence, and this presents the, question as to whether a. prima facia case had been made, on the evidence. In the first instance, the court admitted certain portions of evidence offered by the plaintiff over the defendant’s objection, which was subject to the objections made, and was the duty of the court to have ruled out* — such for instance as the declarations of Fullerton, and of Baird the treasurer of defendant, which were made at a time when not acting for the defendant in1 connection with the transactions concerning which the declarations were made.—Danner Land & Lumber Co. v. Stonewall Ins. Co., 77 Ala. 14. Ini this case it ivas said: “It is not within the scope of an agent’s authority to bind his principal by admissions and declarators having reference to by-gone transactions. Such declarations, to he admissible, must have been made while the agent; was in the discharge of his duties as agent, and be so clearly connected with the main transaction which is sought to* be elucidated or explained by them, as to constitute a part of the res gestae of such transaction.” Whether the $1,250 Avas paid as an assessment on stock under a common agreement of all stockholders to* provide for the indebtedness of the defendant corporation, or Avas a loan made, to be refunded, AAdien the indebtedness of the concern Avas paid off, is immaterial, and under the evidence, it Avas one or the other, and in either eArent the plaintiff failed to make a prima facie case. The complaint claimed for a loan made by Fullerton, and if the money Avas paid as an assessment on stock, certainly it could not be recovered as a loan. If it was intended as a loan, and to be paid back when all of the debts of the corporation had first been paid off and satisfied, then no right of action to recover the loan as a debt could arise until the happening of the conditions. — Garner v. Hall & Farley. 122 Ala. 221. The burden of proof was on the plaintiff to show that the agreement upon which the loan was made had been completed and tire debt had matured. There was no' evidence of this, and for the want of it no prima facie right to recover was shown on the theory of a loan; and the court committed no' reversible 'error in the exclusion of the evidence.

Affirmed.