Gliddon v. McKinstry

G’OLDTHWAITE, C. J. We are unable to perceive any error in the rulings of the primary court in this case. The instrument executed by Cuthbert, in favor of the appellant, requesting McKinstry to pay appellant two hundred and twenty-five dollars, “ out of the proceeds of the judgments from the county court of Mobile county against A. 0. & A. [412] Hollinger, when collected”, and which was accepted by McKinstry, is not a bill of exchange. It is not payable absolutely, but the order is to pay out' of certain .proceeds when collected, and which might or might not be collected. It was for a part of the judgment previously transferred to Cuthbert. It was competent, therefore, for McKinstry to show by proof the consideration upon which his acceptance was based, and that no funds, the proceeds of the judgments mentioned in the order, belonging to Cuthbert, the drawer thereof, ever came to his (McKinstry’s) hands. As tending to show this, the court properly allowed him to introduce the trust deed from Carr, by which the claim on which the judgments were founded was transferred to McKinstry; also, the depositions of Cuthbert and Gilbert, no objection being taken to either of these witnesses on the score of interest. This evidence showed that the funds which had been collected upon the judgments were exhausted by payments to those having claims prior to that of appellant, and that the portion of the judgment assigned by Carr to Cuthbert, and by the latter to appellant, has not yet been collected. As respects the charges: The first, which denied an inquiry into the consideration of the appellee’s acceptance, was properly refused. The acceptance must be taken in connection with the request, which was conditional, and, when properly construed with reference to the subject-matter, amounted to a promise on the part of McKinstry to pay the amount of the order to Gliddon, when that sum should be collected by him, which would otherwise have been payable to Cuthbert. For aught that appears, the second charge was purely abstract, as no question appears to have been raised by the pleadings, nor by the bill- of exceptions, involving the statute of limitations. It does not appear that it was insisted on, and hence the court might well refuse to charge upon it. The third charge assumes, that the onus of proving diligence was cast upon McKinstry, and that he could be held liable for neglect in failing to collect the judgments, in the absence of' all proof showing, or tending to show, that he failed to do his duty respecting said demand. Such is not the law. The plaintiff avers negligence, and he must prove [413] it, ox' some fact from which the jury may properly infer it. Until he does this, the defendant may remain passive, as no case is made against Mm. The fourth charge denies to McKinstry the right to discharge the prior liens upon the sum collected, assuming that, if he collected more than the apppellant’s claim,'the question of the consideration of his acceptance could not arise. We have seen that this position cannot be sustained, (see Smith v. Houston, 8 Ala. R. 136); and although other portions of this charge might be proper, yet, being connected with this, which was bad, the court properly rejected the whole. Judgment affirmed. Walker, J,, not sitting.