Shannon & Co. v. McElroy , 3 Ala. App. 519 ( 1911 )

WALKER, P. J.

The defendant was not prejudiced by the action of the court in striking his third plea. The defense of want of consideration was available to him under his plea of the general issue. In assumpsit, under the general issue, any matter which shows that the plaintiff never had any cause of action, or that, ex aequo et bono, he ought not to recover, may be given in evidence. That plea puts upon the plaintiff the burden of proving every fact which is an essential constituent of his cause of action.

The express or implied promise upon which such action is based requires a consideration for its legal support and existence; and the plaintiff cannot maintain his action when the evidence shows that the promise counted on was without consideration.—Matthews v. Turner, 2 Stew. & P. 239; Robinson v. Windham, 9 Port. 397; Ala. Gold Life Ins. Co. v. Mobile Mutual Ins. Co., 81 Ala. 329, 1 South. 561; 4 Cyc. 353; 2 Ency. of Pleading & Pr. 1029.

In view of the conflicting evidence set out in the bill of exceptions, the assignments of error based upon the refusal of the court to give the general affirmative charge requested by the defendant, and to grant his motion for a new trial, are clearly without merit.

Affirmed.