Strother's Adm'r. v. Butler , 17 Ala. 733 ( 1850 )

PARSONS, J.

It apppears that. Butler,.in the fall of 1843, delivered a sum of money to Strother, to be paid to Thompson; and when Butler proved that fact, as tending to show his defence to the present action, the plaintiff objected , to the. evidence, because the money was. delivered to Strother before the commencement of Butler’s-suit against Strother, in the Circuit Court of Macon. The objection rested upon the supposition that Butler’s demand against Strother, in respect of this:sum of money, was tried in the suit in Macon;,and. if that fact had conclusively appeared, the same demand would have been barred, aud consequently, could not have been relied on- as. a defence to the present action. But it is not contended, that the record of the suit in Macon shows that this demand was tried-r-that might have been proved on the trial of this cause by parol evidence. — Gardner v. Buckbee, 3 Cowen’s Rep. 120; Rakes, Adm’r. v. Pope, 7 Ala. 161. But there was no such proof, nor, indeed, does it appear that this demand could properly have been tried, in that cause, for it does not appear that Strother- was then in any default with regard to it, even, if that were the case at any time afterwards. It does not appear that he had used the money, or refused to pay it. to Thompson, or that the latter was in the country, or even, in life, so that lie could have paid it to him. The record of the .former suit, by itself, was no estoppel’against.the assertion of the demand in question, in defence of this suit, and therefore there was no error in refusing to exclude it.

1. The court charged the jury on trial of this case, that Strother could have availed himself of the demands sued fo.r. in this.action, provided the jury believed Butler assented to it, but there Was, as appears by the bill of exceptions, no evidence of such assent. To this charge the plaintiff also excepted. The charge appears to have been unnecessary, as there was no evidence to which it could apply, and it might possibly have misled the jury; and further, if Strother had demands upon which he had the right to bring a cross action, he was not bound to use them as a defence. But it not necessary to decide whether this charge, in point of law, was erroneous or not.

2. As it was the agreement between Butler and Strother that the latter was to have a certain portion of the crop, in consideration of his services in raising it on the plantation and with the hands of the former, they were tenants in Common, as will appear by the case of Mawhinney & Smith v. Thompson, which we decided at the present term.

3. It appears that Strother’s son, who was a minor, labored on the plantation during a portion of the year in which the crop was on hand. The services of (he son were not required by the original contract between Strother and Butler, and it was the object of the present suit to recover, among other things, for the services of the son; in relation to which, the court charged the jury, that although they might believe from the evidence, that the son labored on the farm in the year 1844, (the year when the crop was on hand,) and that the defendant might have seen him so laboring, yet the plaintiff could not recover for his services in this suit, if they believed from the evidence that the defendant was to furnish a cettain number of hands, and did furnish them, and was to give the plaintiff1 a certain portion of the crop, ‘'unless it was shown from the evidence what additional crop Was made by the labor of the son, so that they could separate it from what was made by the hands agreed to be furnished by the defendant, and of which the plaintiff was to receive a certain part, and thus ascertain the value of the plaintiff’s share of the crop made by the hands agreed to be furnished by the defendant.” To this charge the defendant excepted. It does not follow from the fact that the son assisted to cultivate the crop, that the father was to be paid for it out of the crop, even if that circumstance could control the question of his right to compensation, and this question we think was a proper one for the jury to consider in this action. If the father employed his son, then under his control and a member of his family, in the business for a considerable time, and this with the defendant’s knowledge, it is a circumstance tending to show a contract for the service between the father and the defendant, especially if the latter made no objection, although it would not be conclusive by any means. And if the business actually required the service of the son, the presumption of a contract would be the more reasonable.

4. After this view, the question relates to the remedy. It there was a contract or agreement beween the parties for the service of the son in the business, can the father’s adm’r. recover a just contribution for the service from the defendant, in an action of assumpsit? AVe think he can. It stands, we think, on the foot ■of an advance made by one tenant in common, of his own money, for the benefit of himself and his co-tenant, pursuant to an agreement beticcen them. In such case it cannot be doubted but that the tenant making the advance can recover contribution from his co-tenant by an action of assumpsit founded on the contract. If one tenant in common advance his own money for the benefit of both and at the request of his co-tenant, with an understanding that the latter is to make recompense according to his proportion, the action of assumpsit to recover it certainly will lie, and if so, the former, under similar circumstances, may recover for the services of his son and the use of his wagon, provided the jury can infer from the dvidence that Butler agreed to pay for them.

AVhat we have said on the last point applies to the next. If Strother used his wagon in the business of the parties, pursuant to an understanding between them that Butler was to be accountable for the use thereof or for a proportion of it, he would be liable accordingly in this action; and the question whether there was an understanding or agreement of the sort, was for the jury under the circumstances attending the transaction.

5. It does not appear that there was a sale of the cow by Strother to Butler. If the latter converted the cow by selling her (which appears not to have been the case,) to another person, Strother or his adm’r. might waive the tortious conversion and recover against Butler the money which the latter received from the sale. In such case the count for money had and received would be appropriate. But the doctrine of waiver can go no further. It cannot be admitted to extend to cases of mere conversion, so as to enable the injured party to treat the property.-converted as sold and delivered, and to bring assumpsit for the. price. — Gray v. Griffith, 10 Watt’s Rep. 431. We reverse the judgment and remand .the cause, not finding.jt necessary to der. ci.de any. further, question in the cause,