Stoddard v. Kelly's Administrator

50 Ala. 452

Opinion

B. F. SAFFOLD, J.

The appellee, as administrator of the estate of John Kelly, deceased, sued the appellants, on a promissory note made by them, payable to him. The defendants pleaded — 1st, non assumpsit; 2d, failure of consideration ; 3d, set-off; 4th and 5th, two special pleas, in substance, that the note was given on the purchase of mules, &c. which the plaintiff represented to be sound, whereas some of them were unsound. To these last special pleas the plaintiff replied, that he had sold the property in his representative capacity, and had made no representations of soundness. A demurrer to this replication was overruled.

The evidence in respect to whether representations of the soundness of the animals had been made or not was conflicting. The plaintiff testified, that he was but little acquainted with the property, and had not made any representations of soundness. Other witnesses said they were present at the sale, and no representations were made; that if any had been, they would have heard them. The court refused to give a-charge asked by the defendants, “ When testimony is of a positive character, it cannot be overturned by mere negative testimony.”

1. The demurrer was properly overruled. If the plaintiff sold the property as administrator, and made no representations of its soundness, he was not responsible for any unsoundness, as he might have been, if he had sold them in his individual capacity. The replication is a full answer to the pleas.

2. The charge of the defendant, which was refused, would forbid the plaintiff from proving he had not made the representations attributed to him, if any one could be found to swear that he had made them. There is a rule, that the positive testimony of one credible witness to a fact is entitled to more weight than that of several others who testify negatively, or, at most, to collateral circumstances merely persuasive in their character; but it falls far short of the one claimed in the charge. Kennedy v. Kennedy, 2 Ala. 571; Todd v. Hardie, 5 Ala. 698. The judgment is affirmed.