May v. Diaz

BYRD, J. 1. It is questionable whether or not the legislature, by the adoption of the Code, intended to abolish the actions of debt and covenant, and to substitute the first three forms on page 553, in the stead of declarations in those actions at common law, (which forms are unknown to that law,) or to abolish the distinction between those actions. The Code furnishes no form of plea which could be considered as amounting to a general issue to the forms given. At common law there was no general issue to an action of covenant. Every defense had to be plead specially. — Saunders’ Plead. 393, (457.) In an action of debt on certain contracts and legal liabilities, nil debit is at common law the general issue. — Ib. 406, (472.) [387] In the case before us, the complaint resembles more a declaration in an action of covenant than one of debt; though a common law jurist would scarcely take it to be a good declaration in either. But it is in substantial conformity to the first form prescribed on page 553 of the Code, and we will treat it as an action of covenant. And the first difficulty which presents itself, arises from the fact that the record does not disclose what plea, if any, was interposed as a defense to the action. This court has held, that on a trial by jury when no plea is filed, it will be presumed that the cause was tried on issue joined on the plea of the general issue. But where, as in an action of covenant, there is no such plea, and there are many special pleas which may be plead to the action, can any, and what presumption be indulged ? Can we presume that an issue was joined on any special plea, and which, or on all? My opinion is that the appellant must take the consequences of the defect of the record, and we can not presume that any special plea was plead, when such presumption would or might result in a reversal of the cause. Such a course would be in direct conflict with the long settled doctrine of this court, which is, that it devolves on the appellant to show error affirmatively, and this court will indulge every reasonable intendment in favor of the ruling of the court below, and will indulge none for the purpose of a reversal. As far as this court has gone in this direction, is to presume that a cause was tried on the general issue, when the judgment entry shows that the trial was on issue joined. I know of no case where the court has ever presumed that any special plea was filed, upon such a recital in the judgment entry, for the purpose of a reversal. In the attitude in which this case stands on the record, I do not see how we can say that the court did or did not err in the refusal to give the charge asked, or in giving the charge excepted to by appellant. 2. But however this may be, it appears to me, that the charge asked was properly refused, on the ground that the jury might have found all the matters to have been as set [388] forth therein, and yet it would not preclude the plaintiff from recovering the first weekly installment of rent. — Baylis v. Usher, 4 Moore & P. 791; Willoughbey v. Bockhouse, 4 Dowl. & R. 539 ; Aurioll v. Willis, 4 T. R. 98, (64;) North v. Eslava, 12 Ala. 242; Nesbitt v. McGhee, 26 Ala. 748; Davis v. Preston, 6 Ala. 83. For the matters set forth in that charge would not necessarily defeat a recovery in the action to the extent of the' weekly-payments, which were due when the partnership between Bates and Tidmarsh was dissolved, and the new contract between Bates and Diaz was entered into. — Nesbitt v. McGhee, supra. All the evidence is not shown to be set out in the bill of exceptions, and it does not appear that the payment made by Bates was made on the first or the second contract. The effect of the charge is to require the court to decide that question as a matter of legal presumption ; which, under the evidence in this record, it was not authorized to do. — Morris v. Hall, at the present term. For if the payments were made on the second contract, they could not be a bar to this action, even if all the other matters set out in the charge were found by the jury to be true. And upon the authorities already cited, the taking possession of the premises after the accrual of weekly installments of rent, could not defeat the right to recover for such installments. We can see no error in, the charge given, as the court expressly declares that the matters set forth in the charge “ would not be a defense to this action and bar a recovery by plaintiff”; and so they would not, under the doctrine hereinbefore announced. Let the judgment be affirmed.