Ala. & Tenn. Rivers Railroad v. Nabors , 37 Ala. 489 ( 1861 )

R. W. WALKER, J.

The two instruments offered in evidence, after acknowledging the receipt of certain notes as a loan to the defendant, state that the “ loan is made on the conditions and terms stated in the resolutions of the board of directors passed June 13th, 1856, and recorded on the minutes:” The resolutions referred to were not produced, — the failure to produce .them was not accounted for, — nor was -there any evidence whatever as-to what were the conditions and terms of the loan therein set forth ; and the question now presented is, '-whether, under -this state of the proof, the plaintiffs had the right to recover, either upon the special contract, or on the common counts. We think it clear that they had not.

Where -the -existence of -a special, unréscinded contract is disclosed by the evidence, the plaintift must show it's stipulations.j -otherwise, it is impossible to determine whether he has -a right to -recover. This plain principle controls the present case. The instruments-executed by the secretary, on behalf of the company, showed upon their face that they did not contain the whole of the contract between the parties, but that a part of it, namely, the terms and conditions on which the loan was made, was set forth in another writing, particularly described and referred to. In the very nature of things, the right of the plaintiffs to recover must depend upon the terms and conditions of the loan ; and, in the absence of proof as to what those terms and conditions were, the suit must fail. This .is different from a general loan, without any special contract. In that case, the promise, and the time of re-payment, would be fixed by legal implication. But no such implication arises in favor of a plaintiff who proves that there was a special contract, defining the terms and conditions of the loan, but fails to -show what that contract was.

It will not do to say, that it devolved upon the defendant, in whose possession they were, to produce the resolutions. It was for the plaintiffs to make out their case; and this they could not do, without showing that the day of payment had arrived, and that the defendant was in default,; ¡and whether or not this was so, depended entirely upon tbe terms and conditions of the loan. — Kerstede v. Raymond, 30 Inda. 199, (204;) Whitford v. Tuten, 10 Bingham, 395 ; Snedicor v. Leachman, 10 Ala. 330; Clarke v. Smith, 14 Johns. 326 ; 1 Greenleaf’s Ev. § 87.

If the plaintiffs had proved the'contract; and then proved that it had been fully performed on their part, so that nothing remained to be done but the re-payment of the money, they might have recovered on the common -counts-; But this was not done. The evidence showed the existence, but not the stipulations-of- the contract.- — Snedicor v. Leachman, supra

Judgment reversed, and cause remanded.