M. Frank Sons & Co. v. Davis

• Decision Date: 20 May 1926
• Docket Number: 4 Div. 251
• Citation: 108 So. 575,214 Ala. 601
• Parties: M. FRANK SONS & CO. v. DAVIS.
• Court: Alabama Supreme Court

108 So. 575

214 Ala. 601

M. FRANK SONS & CO. v. DAVIS.

4 Div. 251

Supreme Court of Alabama

May 20, 1926

Appeal from Circuit Court, Covington County; W.L. Parks, Judge.

Action by M. Frank Sons & Co. against James L. Davis, as administrator of the estate of J.W. Davis, deceased. Judgment for defendant, and plaintiff appeals. Affirmed.

Baldwin & Murphy, of Andalusia, for appellant.

A Whaley, of Andalusia, for appellee.

THOMAS J.

The suit is on account.

It is only when the evidence is without conflict and establishes the requesting party's right to recovery that the jury may be given affirmative instructions. Watts v Metropolitan Life Ins. Co., 211 Ala. 404, 100 So. 812; McMillan v. Aiken, 205 Ala. 35, 88 So. 135. And this is true if the conflict in evidence is presented in the testimony of the same witness, or that of several witnesses for the same party or the different parties to the suit. Jones v. Bell, 201 Ala. 336, 77 So. 998.

We have examined the record. The issues of payment and return of goods, the extent and amount thereof, are in conflict, or susceptible to adverse reasonable inferences. In such cases general affirmative instructions must be refused. The reasonable inferences from the evidence must be drawn by the jury. The burden was on the plaintiff. Exhibit T, offered by plaintiff, was to the effect that, on a date not stated Davis & Co., of Andalusia, wrote M. Frank Sons & Co. "Inclosed please find check to cover my account." Plaintiff's evidence also contained Exhibit JJ, as follows:

"April 27, 1920.

"Messrs. J.W. Davis & Co., Andalusia, Ala.--Gentlemen: Please accept our kind thanks for your check for $1,786.05, which we have placed to your credit. It is impossible for us to check this remittance upon our books, and will ask you to please mail us an itemized statement just what this payment is intended to cover. Please give this your immediate attention.

"Very truly yours, "M. Frank Sons & Co., Inc."

When the foregoing documentary evidence and the reasonable inferences obtaining in the light of the testimony of King, Mosely, and Zeigler, are considered, they showed the burden of going forward with the evidence as to date and extent of payment and return of goods to be on the plaintiff, and plaintiff failed to enlighten the jury sufficiently in that respect. The affirmative charge was properly refused on authority of McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135.

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