Walker v. Driver

| Ala. | Jan 15, 1845

ORMOND, J.

— To repel the presumption of payment of the debt in suit, the plaintiff, it appears, relied upon a settlement made between him and the defendant, accounting for the moneys in his hands, and giving him credit for the balance upon the note in suit. Upon this accounting, it appears, that the result was reduced to writing, and being proved by the person who, at the instance of the parties, stated it, the paper was admitted in evidence. This we think was entirely proper, it was the highest and best evidence of the fact.

This settlement was written upon the back of another instrument, to which it refers, and with which it appears to have some connection, though to what extent does not distinctly appear. It was objected that the plaintiff could not read the settlement, without first proving the instrument on the back of which it was written. The reverse of this appears to us to be the true rule, and that the reference in the settlement to the order written on the other side, made that, evidence, at least for the defendant, if he thought proper to use it. The settlement of the accounts was a distinct fact, which the plaintiff had the right to prove, and if that was connected with, or in any manner controlled by, the paper on which it was written, it was for the defendant to insist on it.

We do not understand that the witness who was called to prove the settlement, undertook to state the items of which it was composed, so as to show its correctness; but that he stated that the result of the settlement was obtained by each party stating the items of his account, and that from the admissions of each party, the settlement was made. That among the items of charge of the plaintiff, were certain judgments obtained by the plaintiff before a justice of the peace, against one David S. Walker, which the defendant admitted. To all this we can see no objection. We do not understand that the witness was permitted to prove the existence, or the amount of these judgments, but merely, that there were such items of charge in the plaintiff’s account, against the defendant, admitted by the latter to be correct.

The effort on the part of the defendant appears to have been, to falsify the settlement between him and the plaintiff, and for that purpose he called David S. Walker, who proved, that he had never been indebted to the plaintiff. The account stated between the plaintiff and defendant, was binding prima facie on both parties, until it was shown to be incorrect. If the witness had proved that no such judgments existed, as were included iu the settlement with the defendant, it would have been necessary for the plaintiff, to sustain these items of charge, by proving their existence*. It was not nece'ssary that he should produce and prove the judgments, because, so far as we can judge from the record, the fact that they existed was not disputed. The attempt appears to have been to go behind the judgments, and to prove that they were not founded on subsisting debts; but it is very clear that they could not be thus collaterally impeached.

In Langdon v. Roane’s adm’r, 6th Ala. Rep. 518, this Court had occasion to consider the effect of an account stated, and it is there said, that where parties hatfe settled their accounts, and struck a balance, it is incumbent on the party alledging fraud, or mistake, to establish it by proof; see the case, and the numerous authorities there cited.

We are unable to perceive any error in the judgment of the Court, and it is therefore affirmed.