Tisdale v. Maxwell , 58 Ala. 40 ( 1877 )

STONE, J.

The note, or agreement, of December 6th, 1871, by Benjamin Ware and Joseph Tarry, to Tarry and Maxwell, imports, prima fade, a joint and co-equal interest in the two payees. This, however, does not preclude proof of the true transaction, and that the.,’consideration moved •from them, in separate and unequal amounts and values. And if it be shown that such was the real transaction, then if one of the payees collected more than his share of the claim, an action for money bad and received would lie against him in favor of the other payee, for such excess of collections. And such excess could also be pleaded and proved as a set-off, against a suit by the party to whom the excess of payment had been made. This, because there is no evidence of a partnership between Tarry and Maxwell.

In the trial of this cause in the court below, it became a material inquiry, how much was the several interest of the two parties, Tarry and Maxwéll, in the said note or obligation of Ware and Tarry, and to what extent each had made collections. Maxwell, plaintiff below, was introduced as a witness. He was competent to testify for himself as to all matters involved in the issue, except “transactions with, and statements by” Tarry, the deceased. — Code of 1876, §3068. It would seem that this question ought, generally, to be of easy solution. Any understanding or agreement between Maxwell and Tarry, by which the note was to be made payable to the two, or, by which Tarry was to take the horse, or, to take him on account of the sum due him, would be a transaction with Tarry, to which Maxwell could not testify on his own account. It was competent for him to state the ownership and value of the several pieces of property that made up the consideration, and the fact, if such was the case, that Tarry had possession of the horse, or sold him to another. — See Cousins v. Jackson, 52 Ala. 262. The testimony of Maxwell, “that the horse was placed in Tarry’s possession,” falls within this rule. It was a transaction with Tarry, as we understand the bill of exceptions.' The court erred in admitting this evidence.

The Court of Quarter Sessions also erred in charging the jury that the giving of the note by Tarry to Maxwell, dated January 8th, 1872, was prima facie evidence of the settlement of all previous indebtedness, including the due bill for eighty dollars, given by Maxwell to Tarry, and bearing-date January 7th, 1871. The rule is, that the giving of a note is prima facie evidence of the settlement of all previous accounts between the parties; but no such presumption arises as to notes previously given. — See 1 Brick. Dig. 297, § 645. The possession and production of the note by Tarry’s executor, was prima facie evidence that the note was his, in his right as executor, and unpaid. — Jarrell v. Lillie, 40 Ala. 271.

The various rulings of the court, in regard to the order for $25.68, drawn by Maxwell on Tarry, and in favor of Harwood, were rendered immaterial by the remititur of that sum made by the appellee, in pursuance of the order of the court. Should the question come up again, we know no reason why any legal facts and circumstances may not be proved, which tend to 'show tbe consideration of the order, or the, fund, if any, against wbicb it was drawn.

Reversed and remanded.