30 Ala. 471
Ala.
1857
STONE, J.

Thе judgment entry recites, that the circuit court sustained the defendant’s demurrer to the amended declaration, and thereupon the plaintiff took a nonsuit. The bill of exceptions states, that the court sustained the defendant’s objection to the written testimony offered by plaintiff; that plaintiff excepted, and took a nonsuit. It is thus seen that there is a palpable conflict between the judgment entry and the bill of exceрtions. The rule of law, in such cases, is, that the latter centrols the former. — Landreth v. Landreth, 9 Ala. 430.

The record being thus construed, we are restricted in óur investigations to the question on the exclusion of evidence ; that being the only question presented by the bill of exceptions. — Code, § 2357; Palmer v. Biсe, 28 Ala. 430.

After the demurrer was sustained to the several special counts, the plaintiff went to the jury on a complaint containing only a single common count. To the written contract copied in the record, when offered in evidence, *475the defendant objected, first, becаuse it was not specially declared on. It is true that, where the plaintiff claims damages for the non-performance of an executory agreement, and the breach sounds in damages merely, the count should be special, describing the contract and its breach. — Haynеs v. Woods, 1 Stew. 12; McGehee v. Hill, 4 Porter, 170. But when the claim is merely of a pecuniary nature, and is founded on an ‍‌​​‌​‌​‌​‌‌‌‌​​​‌​​​​​​​​‌​‌​‌​​‌‌​‌‌‌​‌‌​‌​​​‌‌‍executed consideration, it is sufficient to declare rxрon the common indebitatus counts. — 1 Chit. Pl. 316, 372; Madison College v. Burke, 6 Ala. 494; Carlisle v. Davis, 9 Ala. 858; Beckwith v. Baldwin, 12 Ala. 720; Wilson v. Sergeant, 12 Ala. 778; Dukes v. Leowie, 13 Ala. 457; Bank v. Williams, ib. 544; Holloway v. Lowe, 1 Ala. 246; Braham & Parsons v. Tarver, Minor, 370.

It was objected, in the second place, to the written evidence, that the contract created a trust, not сognizable in an action at law. It is a general rule, that an action at law will not lie against a trustee as such, for money had and received. Aftеr the trust is closed, and a final account stated, showing a balance in the hands of the trustee belonging to the beneficiary, such action may be maintained. — Hill on Trustees, 518, and note; 2 Story’s-Equity, § 1041; Kennedy v. Kennedy, 2 Ala. 572 ; 1 Chit. Pl. 69, 38. The exception to the rule is, the common case of a bailment, or deposit, of property or money in the hands of one, to be delivered or paid to another. In such case, an action at law may be maintained in the name of him to whom the property or money ex cequo et bono belongs. — 2 Story’s Equity, § 1041; Story on Bail-ments, § 103; Br. Bank v. Parrish, 20 Ala. 433; Hitchcock v. Lukens, 8 Por. 333.

In the case of Hitchcock v. Lukens, supra, a beneficiary was allowed to maintаin an action at law against his trustee. In that case, however, the trustee, or bailee, was required to do nothing ‍‌​​‌​‌​‌​‌‌‌‌​​​‌​​​​​​​​‌​‌​‌​​‌‌​‌‌‌​‌‌​‌​​​‌‌‍more than sell the property, and, out of the proceeds, pay certain debts. Wfe have found no ease that carries the principle further than this.

If, in pursuance of the apparent intention of the instrument offered in evidence, Bogers entered upon and *476executed, either in whole or in part, the duties which he seems to have taken upon himself, we are satisfied that no action at law can be maintained on the contract, until a settlement is had, and a balance struck. The contract required the trustee to furnish for Miss Vincent whatever amount of clothing, schooling and other probable expenses, the trustee might think necessary. Much was confided to the judgment and discretion of Mr. Bogers. In settling the account between them, upon this hypothesis, questions may arise upon the reasonableness of the outlay, and whether the trustee has performed his duties with due reference to the condition and expectations of the beneficiary. The contract clearly contemplates that the defendant was to exercise towards Miss Vincent, so far as this fund is involved, many of the important, delicate and confidential rеlations of guardian. A court of law, by reason of its organic rules, can not do complete justice between parties thus circumstanced. — See Eldridge v. Turner, 11 Ala. 1049. If, on the other hand, Mr. Bogers has incurred no expenses or liabilities for Miss Vincent under said agreement, or if a settlement hаs been had, and a balance struck, then an action at law is clearly maintainable.

As we have shown above, much latitude of proof is allowable under the common counts in assumpsit. The circuit court ought to have admitted the agreement in evidence. It was, prima facie, relevant, bеcause it contained on its face, in one aspect, evidence of a money liability to the plaintiff, which the defendant promised to pay, with interest. It did not express when the money would be due and payable. The nature and objects of the trust show, that the parties did not contemplate a present debt, or present right of action. The expenditures for Miss Vincent which ‍‌​​‌​‌​‌​‌‌‌‌​​​‌​​​​​​​​‌​‌​‌​​‌‌​‌‌‌​‌‌​‌​​​‌‌‍the contract confided to the disсretion of Mr. Bogers, if he incurred any, were continuing in their character, and show that the parties intended to create, and did creatе, a continuing trust. The duties of this trust, like those of a guardianship, would terminate with the minority of the beneficiary; and hence we fix the maturity of this demand, at the time when Miss Vincent *477attained to lawful age. This agreement, and proof that Miss Yincent bad reached the years of majority before she suеd, and that she had demanded the money of defendant, made out a primct-fade case for recovery. All this was in evidence, or offered in evidenсe, by the plaintiff; and the circuit court erred in not allowing the written contract to go before the jury. This order of proof was permissible undеr the common count. — Madison College v. Burke, supra.

This prima-facie case the defendant might have overturned, by showing that he had in fact entered upon the trust, and had incurred expenses or liabilities for Miss Yincent, under the authority given him in the contract. If such prima-facie case was made by the complaint, it should have bеen met by a proper plea. If it appeared in the proof under the common count, it cast on the defendant the necеssity of meeting it with proof. If met as above indicated, the jurisdiction of the law court would have been ousted, and the defendant left to her remedy in chancery.

Lest this opinion might mislead, we further ‍‌​​‌​‌​‌​‌‌‌‌​​​‌​​​​​​​​‌​‌​‌​​‌‌​‌‌‌​‌‌​‌​​​‌‌‍add, that if plaintiff seek to make a prima-facie case by her pleadings, she must take a further step, and either aver that defеndant had incurred no expenses or liabilities for her under the contract, or she must, by some other averment, show a right of action at law, notwithstanding the fiduciary ■duties which the contract presupposes. We say it was necessary that she should make the above averment, or show a sufficient excuse for its omission. It does not follow that she would be required to prove it. The averment being of a negative, while the rule requires that plaintiff shall make it, this duty does not extend beyond the pleadings.

The issue being thus formed, the onus of proof is on the defendant, if in fact he has paid or incurred expenses fоr plaintiff, under the contract.— See Carpenter v. Devon, 6 Ala. 718; Walker v. Palmer, 24 Ala. 358; McCauley v. The State, 26 Ala. 135; Carroll v. Malone, 28 Ala. 521.

As a future guide in the trial of this cause, we therefore *478say that the demurrer to the special counts was rightly sustained.

We have considеred this case as if the four hundred dollars was originally ‍‌​​‌​‌​‌​‌‌‌‌​​​‌​​​​​​​​‌​‌​‌​​‌‌​‌‌‌​‌‌​‌​​​‌‌‍the property of J. H. Vincent. We suppose such to be the case.

For the error above pointed out, the judgment of the circuit court is reversed, the nonsuit set aside, and the cause remanded.