Ross v. Pearson , 21 Ala. 473 ( 1852 )

GOLDTHWAITE, J.

— Tbe claim of tbe defendant in error was founded upon an account for goods, wares and merchandize sold to tbe intestate of tbe plaintiff in error, and money paid for bim ; and tbe first question which is presented irpon the record is, as to tbe admissibility of the evidence tending to show the indebtedness of tbe intestate fop tbe yoke of oxen. This indebtedness did not constitute any item of tbe account filed, and could not, therefore, have been given in evidence to support tbe claim against tbe estate, and bad it been received for that purpose, its admission would have been erroneous. But it is urged, that, although not admissible in that aspect, yet, as the evidence introduced by tbe plaintiff in error was for tbe purpose of reducing tbe account filed, by showing tbe collection of money by the firm of wbicb tbe defendant in error was the survivor, upon debts due tbe intestate, and upon tbe agreement that it should be passed to bis credit, that it was admissible for tbe purpose of showing a debt to wbicb tbe funds thus collected 'were applied.

Tbe bill of exceptions does not inform us, with positive certainty, that tbe evidence wbicb it was offered to rebut, was brought to the view of tbe court; but, as all reasonable inferences must be made to sustain tbe judgment, we presume that it was admitted on tbe trial, by tbe plaintiff in error, that such evidence would be offered; and in that point of view, its admission, though irregular, would not be error, if the record shows that testimony was subsequently introduced which would have rendered it admissible. The record does show affirmatively, that debts due to the plaintiff in error were collected by the firm of which the defendant in error was the survivor, belonging to the intestate, and upon the understanding that the amounts should be passed to his credit; and we regard the authority given to the firm, to credit the intestate with the sums thus collected, as sufficient to authorize the application of the money to the payment of any claim which such firm held against him. And, while the evidence objected to could not have been admitted to offset the indebtedness attempted to be raised, by the testimony in relation to the collection of the money; yet it was admissible for the purpose of showing a demand to which the collecting agents had the right to appropriate the funds collected. It may be remarked also, that the account against the estate was, so far as we are able to judge from the bill of exceptions, a store account, and the purchase of the oxen might well be considered as a transaction outside of the mercantile business, and for that reason not included in the account.

In relation to the evidence tending to show that an amount due to the intestate of the plaintiff in error had been paid to the defendant in error, as his agent, there was no error in refusing to admit it. It was an attempt to set off the individual debt of one partner against a partnership debt, which is in direct opposition to the principle asserted in the case of Taylor v. Bass, 5 Ala., 110. See also Von Pheel v. Connally, 9 Porter, 452.

Neither was the refusal to charge “that, to authorize the plaintiff below to recover for money paid, a previous request was necessary,” under the circumstances, erroneous. Evidence had been offered, tending to show that the payments made by the defendant in error had been sanctioned and approved by the intestate; and, although it is true, as a general proposition, that money paid voluntarily cannot be recovered back, yet, if the payment is sanctioned and adopted by the debtor, he, by that act,- makes the payor his agent, and the law then implies a promise to refund. Roundtree v. Holloway, 13 Ala., 357; Kenan v. Holloway, 16 Ala., 58. Tbe legal proposition asserted by tbe charge asked was correct, as a general rule; but, as tbe evidence tended to show an approval of tbe payment by tbe real debtor, tbe giving of a charge which merely stated tbe general rule would probably have misled tbe jury, and therefore would have been improper. We think tbe true doctrine is, that where tbe evidence is such as to render tbe general rule inapplicable, tbe court may properly refuse to give it in charge. Tbe charge given in connection with tbe evidence referred to, “ that, if money was paid out, and tbe intestate, on being informed of it, approved of tbe payment, then tbe law raised a presumption of a previous request,” if not critically correct, was fully as favorable to tbe plaintiff in error, as if tbe court bad charged, that tbe adoption by tbe debtor of a payment made without request would have tbe effect to charge him; and this being tbe case, tbe error furnishes no ground for reversal. Randolph v. Carleton, 8 Ala., 606.

Tbe concluding portion of tbe second charge which was requested, was in substance, that, if tbe defendant in error, as tbe surviving partner of Pearson & Culbreath, accounted only for tbe sum of $36 23, to tbe administrator of bis deceased partner, as all that was due from tbe intestate to tbe firm, and that there bad been collected, of tbe debts due to tbe intestate, an amount sufficient to pay tbe sum thus accounted for, upon tbe agreement that it should be placed as received by tbe firm to tbe credit of tbe intestate, in that event they should find in favor of tbe ¡olaintiff in error. Tbe legal proposition asserted by this part of tbe charge is, that tbe accounting with tbe administrator of a deceased partner for a certain sum, as due from a debtor to tbe firm, would estop the surviving partner from tbe recovery of a larger amount from tbe debtor. Tbe accounting for a certain sum with tbe representative of tbe deceased partner, might be evidence which, if unexplained, would operate as an admission that such amount only was due; but if tbe settlement bad been made with tbe debtor himself, it would not have precluded tbe recovery of items which were not included in tbe settlement, and which were shown by tbe evidence to be due; and if it could not have that effect when made with tbe debtor, a fortiori, it could not wben made with, a third person. There can be no estoppel, where there is no privity. Miles v. Miles, 8 W. & S., 135.

Neither was there any error in the refusal of the last charge requested. If there was a want of proof as to any particular item of the account, such item could not be recovered, and if the law allowed the books to be introduced as evidence, any irregularity in keeping them might very properly have been taken into consideration by the jury; but, as, under the issue in this case, the whole account was necessarily required to be established by proof, we do not see how the connection in which the various items of which it is made up were stated, can be taken as any evidence against its correctness. If, however, the fact which forms the basis of this charge could operate at all, we do not think it would necessarily raise any legal presumption against the correctness of the account, but, at the most, it would be a circumstance the weight of which it would be proper for the jury to determine. Had the charge been given in the terms in which it was asked, it would have been equivalent to instructions, that the account must be regarded as unfair unless the circumstance referred to was explained by proof. There was no error in its refusal.

The judgment must be affirmed.