Alexander v. Davidson

By the Court, Currey, C. J.: The plaintiff sued-the defendant for a certain sum of money, which it is alleged in the complaint the defendant received for and on account of the plaintiff, and to his own use, in divers sums, at different times, between the 20th of May, 1863, and the 18th of January, 1865, and which the defendant refused to pay over to the plaintiff, though the same had been often demanded after the said 18th of January and before the 1st of February of the same year. The complaint was verified.

The defendant answered that prior to the commencement of the action he satisfied and discharged the demand for which he was sued by payment of the same, and of the whole thereof. This answer was also verified.

After the plaintiff had rested his case at the trial, the defendant offered to prove that, prior to the 1st of February, 18,65, the claim to recover which the action was brought “ was fully paid, satisfied and discharged;” which proof was objected to on the part of the plaintiff as inadmissible under the pleadings. The Court sustained the objection, and the defendant excepted. Did the Court err in this ruling, is the only point to be decided.

The material allegation of the stating part of the complaint [175]is that the defendant had, at the times set forth, received certain sums of money for and on behalf of the plaintiff, which he had refused to pay after demand. The defendant does not deny that he received the money, nor does he deny categorically that he refused to pay the same to the plaintiff after demand therefor. If the allegations of the plaintiff are sufficient in law to entitle him to recover, the defendant' cannot dispute the right of recovery, while he admits the facts stated, unless he avers new facts which defeat their otherwise legal operation, or which in other words, if proved, destroy the legal inference that the plaintiff is entitled to recover. While the defendant does not by his answer deny that he received the money, he does state facts which, if true, destroy the plaintiff’s right to recover. (Drake v. Corkroft, 10 How. Pr. R. 379; Allen v. Patterson, 3 Seld. 476.) These facts the defendant offered to prove, and we are of the opinion he ought to have been allowed to make the proof.

Judgment reversed, and a new trial ordered.