Pollak v. Winter

• Decision Date: 02 October 1910
• Citation: 166 Ala. 255,53 So. 339
• Parties: POLLAK v. WINTER.
• Court: Alabama Supreme Court

53 So. 339

166 Ala. 255

POLLAK v. WINTER.

Supreme Court of Alabama

October 2, 1910

Dissenting opinion.

For majority opinions, see 51 So. 998, and 52 So. 829.

In an action on a contract, payment after breach is new matter, to be pleaded and proved by defendant.

EVANS J. (dissenting).

This case was assigned to, and the opinion prepared by, Justice ANDERSON. The "note by Anderson, J.," appended thereto, states that one of the judges, after having concurred on the original consultation and on the application for a rehearing, "put it back on the rehearing docket and the question was considered en banc." The note fails to state the name of the judge who did this; so, in order that there may never be any doubt as to who this unnamed judge is, I will now and here state that I am the man. I did this for the reason that I believed the opinion was correct until after the application for a rehearing was overruled. Some time after this was done, I was one day thinking of the case (the same having been called to my mind by a pamphlet sent me by Hon. W. A. Gunter, counsel for the plaintiff and appellee in this case, entitled "Some Observations on Law Points in a Recent Case"; the "recent case" being this case), and I became doubtful of the correctness of the opinion. On more thorough investigation, I became convinced that the opinion was erroneous. Being a concurring judge, and finding that I was mistaken in my former opinion, and having the privilege of bringing the case back before the court for reconsideration by the whole court unless the other judges, who had already passed on it, agreed with me, I felt it my duty, under my obligation and oath as a judge, to do so.

Why did I not do this at first--make the investigation which led to my present conclusion? The reason is this: That each judge has assigned to him four times as many cases as he can possibly investigate and write as should be done, especially if he understands the law after he investigates. Our system of pleading is like an exogenous plant, whose capacity for multiplying limbs is only limited by the climate and the fertility of the soil. It must be admitted that no system of pleading can ever be perfect in its operation and effect, as long as men are imperfect. And, if men were perfect, almost any system would do; but as long as morality lags behind intelligence, as long as men have more knowledge than virtue we ought, in all things that pertain to our government, have that system which will give the greatest aid and comfort to these neglected children. What that system should be in this state could in my opinion best be devised after a most thorough investigation into the workings of the different systems of pleading of the different states and countries of civilization by a body of men most learned in the law and altruistic in character.

It may be true that the common-law system had its snake heads; but it seems to me that in nearly every instance, where one has been cut off by our Legislature, two or more have grown out to take its place. Under our present system one may plead as many pleas as he pleases; he may plead inconsistent pleas. The plaintiff may reply with as many replications as he pleases, and with inconsistent replications, and so on. As to whether there shall be one or a thousand issues of law or fact depends upon "the climate and the fertility of the soil." The only natural place for this process to stop with counsel who understands his business, is when he has reached a point where he feels reasonably sure of a verdict or a reversal of the judgment.

We have also the written charge which counsel for either party may ask. In this, if his vocabulary is large, his knowledge of the meaning of words accurate, and his imagination vivid, he may ask a dozen of such charges on each point of law involved in the case, each one stating the point correctly, but in different words; and he may also ask a dozen more on each point which states the law almost correctly. Supposing that there were only 100 issues, and only 12 written charges asked by each side upon each issue, there would still be 1,200 written charges to each side to be passed upon by the trial court. Suppose that 600 are given and 600 refused to each side, then there would be 1,200 to be reviewed by this court, besides the probability that the jury was too much instructed to understand the instruction. Do I object to the system? I cannot say that I do. While, as a citizen or a judge, I deplore it, yet as a lawyer and dialectician I rejoice in it. As a means for the administration of justice, its efficacy is to be doubted; while as an intellectual gymnasium its appointments could scarcely be improved upon. I make this digression merely in explanation of my conduct in not having investigated sooner than I did, and to show why I made two guesses beforehand.

The complaint is in assumpsit, and contains two of the common counts. They are as follows: "The plaintiff claims of the defendant the sum of $3,000 due by account from him to her testator, John G. Winter, in his lifetime, on, to wit, the 21st day of February, 1904; and plaintiff claims of the defendant a like sum for work and labor done by her testator for the defendant at his request, during, to wit, the years 1901, 1902, 1903, and 1904, which said sums, with interest thereon, are due and unpaid." I wish to say just here that the word "unpaid," as used above, is tautologous, as the idea expressed by it is included in the meaning of the word "due," which precedes it; for the word "due" carries with it, not only the meaning that the time for payment has arrived or past, but also that the debt is unpaid--that is, still owing. The Code form for a promissory note is as follows: "The plaintiff claims of the defendant ______ dollars, due by promissory note made by him on the ______ day of ______ and payable on the ______ day of ______, with interest thereon." Here the word "due" means that the debt is owing, and hence unpaid. The sum of money claimed cannot be due if it has been paid. In a suit on an account stated, the Code form, being one of the common counts, ends as follows: "Which said sum of money, with the interest thereon, is due and unpaid."

I have set forth the counts of the complaint, and also the forms for counts upon promissory notes and accounts stated, in order to bring them all before the reader's eye, that he may see that there is either no difference, or no material difference, between them upon the allegation of nonpayment. The opinion says (the italics mine): "As a general rule the burden of proving a negative averment is not upon the plaintiff, but this rule does not seem to prevail in actions upon an open account, as distinguished from a stated or uncontroverted one; and when suit is brought upon an open account, the plaintiff does not overcome the burden by merely showing the rendition of service and the value of same, but must offer some proof that it was not paid for when rendered or when due"--citing Rice v. Schloss, 90 Ala. 416, 7 So. 802; Cook v. Malone, 128 Ala. 664, 29 So. 653; Enis v. Harris, 103 Ala. 330, 15 So. 834; 16 Cyc. of Pl. & Pr. 174-179; Van Giesen v. Van Giesen, 10 N.Y. 316; Lent v. N.Y. R. R. Co., 130 N.Y. 504, 29 N.E. 988; Great Western R. R. Co. v. Bacon, 30 Ill. 347, 83 Am. Dec. 199. I hope to demonstrate that there can be no distinction drawn between a suit upon an open account, a suit upon a stated account, and a suit upon a promissory note, so far as the burden of proof as to payment vel non of the debt sued upon is concerned. As has already been shown, the averment in the complaint that the debt sued on is still unpaid is substantially the same in all three.

We will suppose, by the way of illustration, that A. is a wholesale merchant, and that B., C., and D. is each a retail merchant. A. sells and delivers to B. a bill of goods for $100, payable 90 days after date, and similar bills to C. and D. for the same amount and on same time. To evidence the debt due by B he takes B.'s promissory note; as to C. he renders him, on the week following the sale, an itemized statement of the account, which C. either admits to be correct or fails to object to its correctness; but as to D. he neither takes a promissory note nor renders him a statement of the account. The 90 days expire, and A. brings suit against B. on his promissory note, against C. on the account stated, and against D. on the open account. It seems too plain for argument that the real cause of action in each case is the debt due for the bill of goods sold and delivered to each of defendants, and that the only difference between the three suits is in the manner of proving the debt. In the first case A. makes out a prima facie case when he proves the debt and date of payment, by introducing his note; in the second, when he proves the debt by showing that the account sued upon was rendered by plaintiff to defendant, and defendant admitted its correctness or failed to deny its correctness; in the third, when he introduces a witness, either himself or some one else, who was present at the time of the sale and delivery, and who knows all the facts of it, and testifies thereto. To say that in the case of the open account the burden of proof was upon the plaintiff to show that the debt was not paid at or before maturity, but that in the case of the note and the stated account the rule is otherwise, is to make a distinction where there is no difference. To say that in a suit on an open account the burden of proof is upon the plaintiff to show, to the reasonable satisfaction of the jury, that the goods were not paid for when bought, is simply to say that in a suit upon an open account the burden of proof was upon the plaintiff to show that there was an open...