Sledge v. Tubb

11 Ala. 383

• Court: Supreme Court of Alabama
• Decided: January 15, 1847
• Status: Published

Opinion

ORMOND, J.

From the testimony in the cause, it is manifest that Lea & Langdon were the agents of the defendant, in the receipt of the money deposited with them for the payment of the note in suit, and to cast the loss upon the plaintiff, it must be shown that he agreed to receive the money in their hands as a payment of the debt. It is contended by the counsel for the defendant, that the commencement of a suit against Lea & Langdon for the úse of the plaintiffs, and the judgment obtained is such an election. If it were conceded, that the suit being brought by the attorneys of the plaintiff, with whom the note was lodged for collection, authorized the inference that he directed it to be brought, it would not be evidence of an election to take Lea &. Langdon for the debt, as that act is entirely consistent with the continuing liability of the defendant. To discharge the defendant from liability on this note, he must prove either that the money has been paid by Lea & Langdon, or that the plaintiff agreed to accept the money in their hands as a payment and discharge of this note. The facts in proof authorized no such inference.

Judgment reversed and cause remanded.