Williams v. Sims , 22 Ala. 512 ( 1853 )

PHELAN, J.

The charge of the court, by necessary implication, asserts the doctrine, that one man may make another Ms debtor without that other’s consent.

If the giving of this note by James 0. Williams to Sims, in payment of the debt of Byrd Williams, and the taking of the receipt from Sims in favor of Byrd Williams, which was not delivered to him nor taken with his consent, will render James 0. Williams liable to Sims on this note, then it follows, as a necessary consequence, that James 0. is allowed to make Byrd Williams his debtor, without the consent of the latter. If this note be recoverable by Sims, on this state of facts, from James 0. Williams, then the same state of facts, and the payment of the note in addition; would enable him to recover the amount from Byrd Williams, in an action for money paid to his use. But on this supposition, the action for money paid to the use of another could be maintained, without either averring or proving that the money so paid, was paid at the request of the defendant in the action, which is contrary to well settled law. It follows, that the facts proven, without more, did not show such a consideration as would support an action on this note. One other fact was indispensable to a recovery, and that was, the privity or consent of Byrd Williams to the transaction. The charge of the court, as it stands, is for this reason erroneous. See the case of Beall v. Ridgeway, 18 Ala. 117; 2 Saund. Pl. & Ev. 679.

The charge was erroneous in another particular: The court instructed the jury that, “ if solvent notes or accounts on other persons ” had been demanded at the proper time, and defendant failed or refused to deliver them, the plaintiff was entitled to recover “the amount of the note with interest,” &c.

Anote for a certain sum “to be paid” or payable' — 'the terms are convertible' — '“in solvent notes and accounts of other men,” is not equivalent to a note payable in money, as this charge supposes it to be. Nor do these words indicate, simply, that the maker has the right, as a condition inserted for his benefit, to pay at maturity or before the full sum expressed in the note in such “solvent notes and accounts” estimated in money. But the contract of the maker in such a note is, to pay the sum expressed in the note, dollar for dollar, in “solvent notes and accounts of other men,” at or before maturity; or, the value in money of that amount of such “solvent notes and accounts” at the time of the maturity of the note, if paid after maturity. In an action on such a note, it is necessary to aver and prove, or in case of appeal to prove at least, the value in money of “solvent notes and accounts ” of individuals at the time of the maturity of the note. The difference between the value of such notes and accounts and money — gold and silver coin — may not be very great; it may, in fact, be a mere trifle. Still, they are not money, nor equivalent to money, and therefore the charge of the court to the jury, under the proof, that they must find for the plaintiff the amount of the note, was erroneous. Wilson v. Jones, 8 Ala. 536.

The judgment below is reversed, and the cause remanded.