Duke v. Southern Hardware & Supply Co.

• Decision Date: 30 June 1909
• Citation: 50 So. 892,163 Ala. 477
• Parties: DUKE v. SOUTHERN HARDWARE & SUPPLY CO.
• Court: Alabama Supreme Court

50 So. 892

163 Ala. 477

DUKE v. SOUTHERN HARDWARE & SUPPLY CO.

Supreme Court of Alabama

June 30, 1909

Rehearing Denied Dec. 16, 1909.

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by the Southern Hardware & Supply Company against H. Rowland Duke. Judgment for plaintiff, and defendant appeals. Affirmed.

McClellan and Anderson, JJ., dissenting.

The testimony sufficiently appears from the dissenting opinion. The following charges were refused to the defendant "(7) The court charges the jury that the burden was on the plaintiff to show that its claim is now due; and, unless the plaintiff has so reasonably satisfied you, you must find for the defendant. (8) The court charges the jury that, if they believe from the evidence that the money was loaned to the defendant with the understanding that he was to pay the same back when he got able, then you must find for the defendant, unless you further believe from the evidence that the defendant was able to pay this money back. (9) The court charges the jury that, if they believe from the evidence that the money was loaned to the defendant with the understanding that it was to be paid back to the plaintiff when the defendant got able to pay it back, then you must find for the defendant, unless the evidence reasonably satisfies you that the defendant is able to pay the money back. (10) The court charges the jury that if they believe from the evidence that the agreement between the parties was that the defendant should not pay this money back until he was able, then your verdict must be for the defendant."

Inge &amp McCorvey, for appellant.

McIntosh & Rich, for appellee.

SIMPSON J.

When one man loans money to another, if nothing is said about the time of payment, the presumption is that it is due on demand. I do not find, in the record, any evidence tending to show that, at the time the money was loaned, there was any agreement that it was not to be repaid until the defendant was able. The statements of the witness Hardaway Young do not show any such agreement, but only a purpose to allow the defendant to pay as he could out of his salary, and, when defendant left their employment, he considered the money due.

The circumstances of the loan are clearly detailed, and show that at that time there was no agreement that the money was not to be paid until the defendant was able, and there was no controversy about the fact that there has been a demand made for payment. Consequently charge 7, requested by the defendant was misleading, and properly refused.

The judgment should be affirmed.

DOWDELL, C.J., and DENSON, MAYFIELD, and SAYRE, JJ., concur.

McCLELLAN J. (dissenting).

My Brothers err, in my opinion, in their conclusion that there was no evidence adduced on the trial from which the jury might infer that the demand sued on should become due when defendant was able to pay. If such an inference was open to adoption by the jury, then charges 7 to 10, inclusive, should have been given as requested by defendant, and their refusal was error to reverse. There can be no doubting the proposition that the actor on a money demand has the burden to show that his demand was due...