Watson v. Rollins

90 So. 60, 18 Ala. App. 125, 1921 Ala. App. LEXIS 108

• Court: Alabama Court of Appeals
• Decided: April 19, 1921
• Docket: 7 Div. 684.
• Status: Published

Opinion

SAMFORD, J.

[ri] The only assignments of error insisted upon in brief of counsel are the rulings of the trial court in refusing to give at the request of defendant certain charges ashed by defendant in writing. Therefore all other assignments of error are waived, and will not be considered. 13 Michie’s Dig. p. 210, § 1078 (1).

Charge 4 is substantially the same as charge 1, which was given.

[2] The undisputed evidence in this case shows that the defendant was indebted to plaintiff in the sum of $783, evidenced by three promissory notes and secured by a a mortgage on real estate. When the notes became due and not being paid, plaintiff put them in the hands of his brother to collect for him. Plaintiff lived in a distant state, and never came to Alabama during the negotiations and foreclosure that followed. The property described in the mortgage was foreclosed under the powers therein contained and bought in by one Leath for $600, to whom plaintiff executed a foreclosure deed that had been prepared here in Alabama and sent to him for execution. Leath, holding the notes and mortgage as collateral for a debt owing him by plaintiff, deducted the amount due him, and paid the balance to plaintiff, retaining possession of the notes and mortgage. Subsequently defendant redeemed the land from Leath by paying the $600 interest and costs of foreclosure, and Leath delivered the mortgage and the notes to defendant. This of course left a balance due on the indebtedness from defendant to plaintiff, unless, as is contended by defendant, plaintiff agreed to accept the $600 paid by Leath as a payment in full for his interest' in the notes and mortgage. Plaintiff claims that no such agreement was had. Plaintiff’s brother would have had no authority to make such agreement, without instructions from plaintiff, and plaintiff would not be bound by such agreement unless he authorized it, or with full knowledge of the facts ratified it. 21 R. C. L. p. 869, § 44.

[3] There was a plea of payment, and under this state of facts the defendant asked in writing this charge:

“The court charges the jury that the possession of the notes by the defendants is prima facie evidence of the payment of the notes by the defendant.”

Under the authorities this seems to be correct rule of evidence. Potts v. Coleman, 86 Ala. 94-100, 5 South. 780; Hicks v. Meadows, 193 Ala. 246-257, 69 South. 432; A. & M. R. Co. v. Sanford, 36 Ala. 703; McGee v. Pronty, 9 Metc. (Mass.) 547, 43 Am. Dec. 409; Heald v. Davis, 11 Cush. (Mass.) 318, 59 Am. Dec. 147; Weakly v. Bell, 9 Watts (Pa.) 273, 36 Am. Dec. 116; Richardson v. Cambridge, 2 Allen (Mass.) 118, 79 Am. Dec. 767; Erwin v. Shaffer, 9 Ohio St. 43, 72 Am. Dec. 613.

[4] The question remaining is whether this charge was substantially given, either in the oral charge of the court or in writing at the request of defendant. In its oral charge the court said:

“The defendant pleads and says that this plaintiff is not entitled to recover for the reason that the notes had been paid, fully paid, before the action was commenced. As the court understands the law, when notes are found in the possession of the makers after their maturity, the burden as to payment is shifted to the plaintiff to show payment has not been made. In this case you look to the evidence to ascertain whether or not they have been paid in full”

—and in writing gave this charge:

“The court charges the jury that the possession of the notes by the defendant is presumptive evidence that said notes were paid.”

While there is a technical différenee between presumptive evideñee and prima facie evidence (31 Cyc 1172; 16 Cyc. 1050), when used and applied' to a rule of evidence the two terms seem to be used interchangeably, and to mean practically the same thing. For instance, in 31 Cyc. 1172, under the title, Prima Pacie, we are referred to Presumption, and under that reference again referred to Presumptions of Pact. In 8 Cyc. p. 246, under the title Possession by Maker or Accept-er, the text, based upon the authorities says, “It will be presumed . to have been paid,” while in 3 R. C. D. 1285, under title “Presumption and Burden of Proof ” based upon authorities the text says: “Such possession is prima facie evidence of payment by him.” In Potts v. Coleman, 86 Ala. the opinion on page 100 (5 South. 780) uses the term prima facie,” while the headnote to the same opinion uses “Presumptive Evidence,” and in the case of Potts v. Coleman, 67 Ala. 221, cited as authority by the learned judge in Potts v. Coleman, 86 Ala. 94, 5 South. 780, supra, the circumstance of possession is referred to as a “presumption.” And so we could multiply illustrations and comparisons to demonstrate that, as generally understood, the charge refused had already been substantially and fairly given, and under Acts 1915, p. 815, its refusal will not constitute reversible error.

[5] Charge 6 was the general charge to find for defendants. This under the facts was properly refused.

[6] Charge 9 is bad for several reasons, one of which is the charge omits a knowledge on the part of plaintiff that Leath retained the notes and delivered them to Watson.

We find no reversible error in the record, and the judgment is affirmed.

Affirmed.

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