Pollak v. Winter

51 So. 998, 166 Ala. 255, 1910 Ala. LEXIS 322

Opinions

ANDERSON, J.

As a general rule the burden of proving a negative averment is not upon the plaintiff, but this rule does not seem to prevail in actions upon an open account, as -distinguished from a stated or uncontroverted one; and when suit is brought upon an open account the plaintiff does not overcome the burden by merely showing the rendition of service and the value of same, but must offer some proof that it was not paid for when rendered or when due.—Rice v. Schloss, 90 Ala. 416, 7 South. 802; Cook v. Malone, 128 Ala. 664, 29 South. 653; Enis v. Harris, 103 Ala. 330, 15 South. 834; 16 Encyc. of Pl. & Pr. 174-179; Van Giesen v. Van Giesen, 10 N. Y. 316; Lent v. New York R. R. Co., 130 N. Y. 504, 29 N. E. 988; Great Western Railroad v. Bacon, 30 Ill. 347, 83 Am. Dec. 199. All the authorities seem to agree that’ payment after a breach is new matter, to he specially pleaded and prov en by the defendant, and, while they are divided as to whether or not the plaintiff must prove non-payment when due or at maturity, the weight is with the holding of this court, and seems to proceed upon the theory that the plaintiff must prove a breach of the contract sued on, and in order to do this he must show that his debt was not paid when contracted or a,t maturity After the plaintiff shows a breach of contract, and the defendant relies upon payment subsequent to said breach, he must plead and prove payment, which said subsequent payment cannot be shown under the general issue.

The plaintiff in the case at bar, not having shown a breach of the contract sued on, was not entitled to the general charge, which was erroneously given by the trial court, inasmuch as the defendant interposed a plea of the general issue. The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Dowdell, C. J., and Sayre and Evans, JJ., concur. Note by ANDERSON, J. — After this case was put out, it was again carefully considered upon rehearing, the opinion was considered as sound, and the application was overruled. After this one of the concurring judges put it hack on the rehearing docket, and the question was considered en banc; and while Justice Evans withdrew his concurrence, and dissents, the opinion is concurred in by Dowdell, C. J., and McClellan and Sayre, JJ., who, with the writer, constitute a majority of the court. Justice Simpson was absent, and Justice Mayfield did not wish to dissent or concur.