Jonas v. Field , 83 Ala. 445 ( 1887 )

CLOPTON, J.

The complaint sets forth a contract for the employment of plaintiff as book-keeper for one year, from and including the day on which it was made. The defendant pleaded the general issue, and the statute of frauds. The court instructed the jury, if they found that defendant employed plaintiff for twelve months, from the first day of August, 1885, then the burden was on the defendant to show that the contract was made on an anterior day: in other words, that notwithstanding the complaint alleges a contract valid in form, though not in writing, the onus is on the defendant to prove the invalidity, by proving a contract required to be in writing by the statute of frauds. It may be regarded as a rule, without exception, that the burden of establishing any disputed fact is on the party holding the affirmative, whether plaintiff or defendant. When the defendant seeks to avoid a right of the- plaintiff, by affirming an independent fact, it is incumbent upon him to prove such fact. But the plaintiff is bound to make out his case, in the first instance. Until this is done, the defendant is not required to offer evidence to disprove the claim asserted by plaintiff; and if the whole evidence introduced by both parties in reference to a disputed fact, affirmed by the plaintiff, is equally balanced, he must fail in his suit. — Lehman Brothers v. McQueen, 65 Ala. 570.

At common law, the defense of the statute of frauds could be made on the general issue; but, under our system of pleading, it must be specially pleaded, when it does not appear from the complaint that the contract declared on is one required to be in writing, and is not in writing, or else the defense is considered as waived. The complaint does not aver whether the agreement was in writing or verbal. In declaring on a promise required by the statute to be in writing, it is not necessary to aver that it was so made. Notwithstanding the general issue was pleaded, had the defendant failed to plead the statute of frauds, it would have been competent for the plaintiff to prove, by parol evidence, a contract made on tbe first day of August, or on an anterior day; but tbe statute having been pleaded, parol evidence was inadmissible to prove an agreement required by tbe statute to be in writing.—Lecroy v. Wiggins, 31 Ala. 13. On tbe plea of tbe statute of frauds, it is incumbent on tbe plaintiff to establish, either a contract in writing, or a contract not required by tbe statute to be in writing. Tbe complaint sets out a contract valid in form, and on tbe pleadings be is required to prove a valid contract. When tbe statute of limitations is pleaded, tbe burden rests on tbe plaintiff to prove a cause of action witbili tbe period of tbe bar. Tbe same rule applies when tbe statute of frauds is pleaded. As to pleas of tbe statute of limitations and tbe statute of frauds, the plaintiff is required to show facts which avoid tbe effect of the plea; as when be relies on a parol contract, tbe burden is on him to establish a contract not required by tbe statute to be in writing.—Marston v. Swett, 66 N. Y. 206; Taylor v. Spears, 1 Eng. 381; Wood’s Prac. Ev., 650.

2. Tbe court instructed tbe jury, that it was tbe duty of tbe defendant to act at once, if be intended to discharge plaintiff for tbe commission of any act justifying a discharge, and that be could not pass over such fault for tbe time being, and then offer it as an excuse for subsequently discharging him. Tbe rule applied by tbe court is too strict and rigorous. Mistakes and errors committed by a bookkeeper, which may materially injure tbe business of bis employer, show want of skill or care and diligence, and furnish sufficient cause for bis discharge. Waiver or condonation of such breach of tbe contract may be presumed from bis retention in tbe employment after tbe discovery of them, in tbe absence of any excuse for delay. There is evidence tending-to show that, when tbe defendant complained of tbe mistakes and errors, tbe plaintiff promised to do better, and was thereupon retained in service. When there are circumstances which tend to establish a reasonable excuse for delay, waiver or condonation of a breach of tbe contract is a question of fact for tbe jury, and not a question of law for tbe court. It is true, that if tbe mistakes and errors of tbe plaintiff, if any were committed by him, were in fact condoned, tbe defendant could not rely on them to justify bis subsequent discharge. Tbe court, in view of the tendencies of tbe evidence, should not have , charged tbe jury, as matter of law, that it was tbe duty of defendant to discharge him at once, on discovery of such mistakes and errors. — "Wood’s Mas. &. Serv., § 121.

3. The charge of the court in reference to the duty of the plaintiff to be ready and willing to perform his part of the contract, is erroneous, in assuming as a fact that the plaintiff was around the store of defendant, which the jury were instructed they might take as evidence of his ability and readiness to perform the services. The fact thus assumed being dependent upon parol testimony, the charge invaded the province of the jury.

Beversed and remanded.