Turrentine v. Grigsby

BBICKELL, C. J. 1. The several' questions raised as to the competency of the judge presiding in the court below, have been settled adversely to the appellant. Bell v. State, 115 Ala. 25; L. & N. R. R. Co. v. Malone, 116 Ala. 600. 2. The material inquiry in considering the relevancy of eA’idence is, Avlxether it has a tendency to establish any fact material to support the plaintiff’s case, or the defense of the defendant. If such is its tendency, it is admissible, and the question of its sufficiency or weight belongs to the province of the jury, under appropriate instructions from the court.- — -1 Brick. Dig. 809, §81. The defendant had testified that he had made a payment of five hundred dollars, on the 17th February, 1893, on the note the foundation of suit, and that he got four hundred and thirty dollars of the money from Fletcher. The note he gave Fletcher for money borroAved, bore •date March 1st, 1893. It may be, the presumption that the note bore the date of the loan was Aveak, and that it Avas neutralized by the evidence of Fletcher, that the loan Avas made prior to the giving of the note; it was for the jury under all the circumstances to determine Iioav far it should prevail. And so the note for six hundred dollars, written by the defendant, payable to the plaintiff, and passing into his possession, though the defendant refused on request to sign it, saying he did not oive the plaintiff that sum, Avas admissible. When it Avas written by the defendant, it Avas prima facie an admission that he OAved plaintiff that amount; an admission capable of explanation or contradiction, but Avhich must be taken in connection with whatever of explanatory or contradictory evidence may be offered. [386] 3. A party pleading or relying on payment/ lias the burdenof. proof resting upon him, for if the fact exists, it lies peculiarly within his knowledge. In all civil causes, if the testimony be evenly balanced, or in equilibrium, which is the same thing, then the verdict must be against the party on whom the burden of proof rests. Vandeventer v. Ford & Moseley, 60 Ala. 610; Lehman Bros. v. McQueen, 65 Ala. 570. This is the proposition underlying the first instruction given at the instance of the plaintiff, and in the giving of it, the court below did not err. 4. The rule of law governing the application of payments, when the party making t'he payment is indebted on more accounts than one to the party receiving payment, is well settled. Before, or at the time of payment, t'he debtor may direct its application — if he does not direct its application, the creditor has the right to apply it as he pleases. A disputed question of fact in this, case, Avas whether the defendant had directed a particular payment to be applied to the credit of the note in suit. Upon this question, the testimony of the plaintiff and of the defendant Avas in conflict. In view of this-conflict, the second instruction given at t'he instance of' the plaintiff Avas erroneous, and is cause of reversal. 1 Brick. Dig. 344, §135; Adams v. Thornton, 78 Ala. 489. It predicates the application of the payment Avholly on the act of the plaintiff, withdrawing from the consideration of the jury the testimony of the defendant, that he had directed its application to the payment, of the note in suit. We do not deem it necessary to consider t'he other instructions given or refused, to which exceptions Avere reserved; it is not probable that they Avill be presented in the same form upon another trial. Let the judgment be reversed and the cause remanded.