Paine v. Moore , 6 Ala. 129 ( 1844 )

COLLIER, C. J.'

-The writing declared on, is an acknow-ledgement by the defendant, that there was due to the plaintiff the sum expressed upon its face, being so much money belonging to the latter, which the former had collected and put into the house of J. & P. Paine & Co. It is insisted, that the plaintiff, by accepting this paper as an evidence of his demand, impliedly admits that the defendant has properly placed the money in other hands, and that the plaintiff will look to the depositories for its payment. Such is not the legitimate interpretation of the writing. At most, the admission can concede nothing more than that the defendant has put the plaintiff’s money in “ the house of J. & P. Paine & Co.” Whether it has been placed there under such circumstances as would relieve the defendant from liability to pay it, is a question, aside from the paper, to be solved by extrinsic proof.

It cannot be admitted that it is competent for a debtor, against his creditor’s consent, to place his liability upon others who are willing to assume it. The defendant, by collecting the plaintiff’s money, became liable to pay it to him on demand, and if he has placed it in other hands, without the plaintiff’s assent or acquiescence, he is still chargeable.

There is not the slightest pretence for supposing the case disclosed by the proof, is one which concerned the partnership, of which both parties were members. In its inception, it was an arrangement between the plaintiff and defendant individually; and it does not appear that any thing occurring subsequently, has given to it a different character.

In respect to the second charge, which the court was requested to give the jury, it assumed the truth of all the evidence, and called upon the court to say, that a suit at law could not be sustained by it. This was properly refused, as will be seen from what we have already said; but the court instructed the jury, “ that a suit might be maintained, on the instrument.” Whether, without additional proof, the plaintiff could have recovered on the writing, it is not necessary to consider. The general remark of the court, it is obvious from the charge asked, was only intended to declare that the paper, assisted by the proof, would authorize a verdict for the plaintiff

This view is decisive of the case : the consequence is, the judg mentofthe county court is affirmed.