
    Duke v. Southern Hardware & Supply Co.
    
      Action for Money Lent.
    
    (Decided June 30, 1909.
    Rehearing denied Dec. 16, 1909.
    50 South. 892.)
    1. Money Lent; Time of Payment; Presumption. — Where money is lent without any agreement as to the time of repayment, the presumption is that it is due on demand.
    2. Same; Evidence. — The evidence in this case stated and examined and held insufficient to show that there was an agreement that the money was not to be paid until the lendee was able to pay it.
    (Anderson and McClellan, JJ., dissenting.)
    Appeal from Mobile Law and Equity Court.
    Heard before Hon. Saffold Bbrney.
    Action by the Southern Hardware & Supply Company against H. Rowland Duke. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    The testimony sufficiently appears from the dissenting opinion. The following charges were refused to the defendant: “(7) The court charges the jury that the burden was on the plaintiff to show that its claim is now due; and, unless the plaintiff has so reasonably satisfied you, you must find for the defendant. (8) The court charges the jury that, if they believe from the evidence that the money was loaned to the defendant with the understanding that he was to pay the same back when he got able, then you must find for the defendant, unless you further believe from the evidence that the defendant was able to pay this money back. (9) The court charges the jury that, if- they believe from the evidence that the money was loaned to the defendant with the understanding that it was to be paid back to the plaintiff when the defendant got able to pay it back, then you must find for the defendant, unless the evidence reasonably satisfies you that the defendant is able to pay the money back. (10) The court charges the jury that if they believe from the evidence that the agreement between the parties- was that the defendant should not pay this money back until he was able, .then your verdict must be for the defendant.”
    Inge & McCorve-y, for appellant.
    Counsel discuss the evidence and charges requested and insist that the court erred in the several particulars mentioned. To-sustain their contention they cite the following cases.— Kraus v. Torrey, 146 Ala. 541; Greil Bros. v. Solomon,, 82 Ala. 85.
    McIntosh & Rich, for appellee.
    T,he evidence offered by appellant in proof of his fourth plea made the testimony offered by appellee to which objection was overruled pertinent. — Boggan u. Bennett, 102 Ala. 400. The charges were abstract and properly refused.— Tenn. Go. v. Dcmforth, 112 Ala. 80; 2 Ma.yf. Dig. 565. The charges also assume as true disputed facts. — 2 Mayf. Dig. 567.
   SIMPSON, J.-

When one man loans money to another, if nothing is said about the time of payment, the presumption is that it is due on demand. I do not find, in the record, any evidence tending to show that, at the time the money was loaned, there was any agreement that it was not to be repaid nntil tbe defendant was able. Tbe statements of tbe witness Hardaway Young do not show any such agreement, but only a purpose to allow tbe defendant to pay as be could out of bis salary, and, when defendant left tbeir employment, be considered tbe money due.

Tie circumstances of tbe loan are clearly detailed, and show that at that time there was no agreement that the money was not to be paid until tbe defendant was able, and there was no controversy about tbe fact that there has been a demand made for payment. Consequently charge 7, requested by tbe defendant was misleading, and properly refused.

.The judgment should be affirmed.

Dowdell, C. J., and Denson, Mayfield, and Sayre, JJ., concur.

McCLELLAN, J.

(dissenting). — My Brothers err, in my opinion, in tbeir conclusion that there was no evidence adduced on tbe trial from which the jury might infer that tbe demand sued on.should become due when defendant was able to pay. If such an inference was open to adoption by the jury, then charges 7 to 10, inclusive, should have been given as requested by defendant, and their refusal was. error to reverse. There can be no doubting the proposition that the actor on a money demand has tbe burden to show that bis demand was due at tbe time be instituted his action. In this instance, it was, in my judgment, open to tbe jury to find from tbe evidence that tbe loan should become due when Dube was able to pay. This is demonstrable, I think, by the two quotations from tbe testimony offered for tbe plaintiff. The first: “When did that (having reference to tbe sums loaned defendant by tbje plaintiff) mature, Mr. Young, and become due? A. It matured at such time as he severed bis connection —bis agreement was to pay so much out of bis salary; that was to bear interest from tbe dates of tbe advancements. Q. You say it became due from tbe date be severed bis connection with the Southern Hardware & Supply Company. A. That is supposed to be tbe date.” Tbe witness then testified as follows: “That was on tbe 15th of March, 1907, and then all this money was due.” This testimony, alone, denies tbe application of tbe presumption to which my Brothers give approval.

Tbe witness Young further testified: “Q. Mr. Young, what was tbe agrément between you and Mr. Duke as to tbe payment of this amount? A. At tbe time be got tbe loan? Q. What length of time allowed him? A. He was to pay a certain amount out of his salary. Q. What pro rata? A. No special agreement as to any particular amount, certain amount. Q. He was to pay it back as be was able out of bis salary? A. As be was able to pay, tbe assumption being — (here interrupted by counsel with, “I don’t want any assumption).” To me it appears obvious that these were jury questions: Whether such an agreement was made to pay when able, or to pay out of bis salary when able; and whether such agreement attended tbe loan or tbe arrangements for it.

Kraus v. Torrey, 146 Ala. 548, 40 South. 956, is a direct authority in favor of tbe validity of a condition to pay “when able.” — See, also, 1 Randolph’s Com. Paper', § 111, and authorities in notes.

Tbe judgment should, in my opinion,' be reversed.

Justice Anderson concurs in tbe views of tbe writer.  