Pollak v. Winter

• Decision Date: 13 January 1910
• Parties: POLLAK v. WINTER.
• Court: Alabama Supreme Court

51 So. 998

166 Ala. 255

POLLAK v. WINTER.

Supreme Court of Alabama

January 13, 1910

Rehearing Denied Feb. 26, 1910.

Appeal from Circuit Court, Cullman County; D. W. Speake, Judge.

Action by Sallie Winter, administratrix, against Ignatius Pollak. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

For opinion on rehearing, see 52 So. 829.

For dissenting opinion, see 53 So. 339.

J. B. Brown, for appellant.

Gunter & Gunter, for appellee.

ANDERSON, J.

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. 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 Encyc. of Pl. & Pr. 174-179; Van Giesen v. Van Giesen, 10 N.Y. 316; Lent v. New York R. R. Co., 130 N.Y. 504, 29 N.E. 988; Great Western Railroad v. Bacon, 30 Ill. 347, 83 Am. Dec. 199. All the authorities seem to agree that payment after a breach is new matter, to be specially pleaded and proven by the defendant, and, while they are divided as to whether or not the plaintiff must prove nonpayment when due or at maturity, the weight is with the holding of this court, and seems to proceed upon the theory that the plaintiff must prove a breach of the contract sued on, and in order to do this he must show that his debt was not paid when contracted or at maturity. After the plaintiff shows a breach of contract, and the defendant relies upon payment subsequent to said breach, he must plead and prove payment, which said subsequent payment cannot be shown under the general issue.

The plaintiff in the case at bar, not having shown a breach of the contract sued on, was not entitled to the general charge, which was erroneously given by the trial court, inasmuch as the defendant interposed a plea of the general issue. The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

DOWDELL, C.J., and SAYRE and EVANS, JJ., concur.