Pike v. Bright , 29 Ala. 332 ( 1856 )

BICE, C. J.

This is an action, ex contractu, brought originally before a justice, to recover on an account under twenty dollars. — Code, §§ 2765, 2766. There can be no recovery in it,'except upon a contract or promise, express or implied. It cannot be treated as an action to recover damages for torts or trespasses. The doctrine of waiving a tort and bringing assumpsit, lias no application to the facts of this case ; as that doctrine is confined to cases, where the wrong-doer has disposed of the plaintiff’s property, and has received either money, -or some other thing as money ; and does not extend to cgses of mere conversion, or detention of the plaintiff’s property, without any sale of it. — Crow v. Boyd, 17 Ala. R. 51.

2. The action being brought against a step-father, no recovery can be had for money lent to his step-son, in the absence, and without the request or promise of the step-father; nor upon proof merely of a contract of the step-son with the plaintiff, in the making of which th.e step-father did not have “anything to do,” for the use of a stock-pasture; nor upon proof merely that the defendant’s stock went into and used the plaintiff’s stock-pasture, without proof of any express contract or promise on the part of defendant to pay therefor, or of any facts from which the law would imply a promise on his part to pay therefor.

3. The transfer by Terry of his judgment against the defendant, to the plaintiff, “ upon condition that plaintiff was to pay him for it, if he could make anything out of it,” did not invest the plaintiff with such property in that judgment as entitled him to recover on it in this action. — Adams v. McGrew, 2 Ala. Rep. 675. That transfer does not constitute him “the party really interested” in that judgment: if he cannot make anything out of it, he is not to pay Terry anything for it; if he makes anything out of it, he is to pay Terry. Terry is “ the party really interested” in that judgment, and the plaintiff in this suit cannot be permitted to recover for Terry’s use. — Code, § 2765.

Applying the principles above laid down to the evidence in this case, we must disallow the following items of plaintiff’s account, to-wit: for the cash lent to defendant’s step-son, for the use of stock-pasture, for the judgment in favor of Terry, for the axle-tree, for driving cart, and for the well-rope. The item for potatoes must be disallowed, because the proof shows that the potatoes were paid for ; and for the same reason, the witness-ticket in the State case must be disallowed, — even if it were conceded that a witness for the State, in a criminal prosecution, could enforce his certificate against the defendant, in such an action as the present.

The four other items in plaintiff’s account, amounting in the aggregate to $1.60, must be allowed to him ; but the judgment for $4.18| rendered by a justice on the 1st Saturday in February, 1853, in favor of the defendant against the plaintiff, must be allowed to the defendant. Upon the whole, computing interest, we find that the plaintiff is indebted to the defendant in the sum of $3.24 ; and for that amount judgment must be here entered for the defendant against the plaintiff.

4. As the case is one ex contractu, and for less than twenty dollars, and not one in which either party is entitled to a trial by jury in the circuit court; and as all the evidence is set forth in the bill of exceptions, we shall exercise the authority conferred on us by section 3034 of the Code, and reverse the judgment of the court below, and render the proper judgment. A judgment must be here entered reversing the judgment below, and in favor of appellant, for $3.24, and the costs of this court and of the court below.