MAYNARD & Co. v. JOHNSON

MAYNARD & Co. v. JOHNSON. 1, It is th,e d uty of a Court, when a proper charge is requested, to respond direct. ]y to the charge asked for, and the refusal to give an appropriate charge cannot be justified by afterwards giving one less extensive, but equally free from error. %. The taking of a promissory note raises the presumption that a settlement is then made of all outstanding accounts between the parties, but this is a presumption which may b.e rebutted by other presumptions, or by other facts and circumstances. Wbit of Error to the Circuit Court of Mobile county. Action of assumpsit on the common counts by Johnson against Maynard & Co. Pleas — non-assumpsit, payment and set-off. At the trial the plaintiff offered in evidence -letters written by the defendants, conducing to show the course of dealing between them, and that in the year 1838, the plaintiff sold to the defendants a stock of drugs, for about two thousand dollars. Also an account rendered by the defendants to the plaintiff, under date of August, 1838, showing a balance against the defendants of 422 50-100 dollars. The defendants offered in evidence a note made by the plaintiff to them or bearer,under date of the 10th May, 1840, promising to pay 45 40-100 dollars on the first day of January then next. The defendants asked the Court to charge the jury, that the giving of a promissory note by the plaintiff to them, after the date of the account, on which the defendants admitted themselves indebted to. the plaintiff, was, if unexplained, presumptive proof of a settlement of accounts between them. . And the defendants asked the further charge, that the giving such promissory note by the plaintiff to the defendants was sufficient to warrant the jury in finding the plaintiff indebted to the defendants; and that if such fact be unexplained, the jury ought to find a verdict for the defendants, for the principal and interest of the note. These charges were refused, and the jury instructed they must take the whole case, and find such a verdict as tbs proof on both sides warranted; that the note was not conclusive evidence of a final settlement. The defendants excepted to the refusal to give the charges asked for, and also to that given, and prosecuto this writ of error to reverse the judgment rendered against them. StewaRt, for the plaintiff in error. DaRGan, contra. [MAJORITY — GOLDTHWAITE, J.] GOLDTHWAITE, J. 1. We have several times hold that it is the duty of a Court, when a proper charge is requested, to respond directly to the request; and that the refusal to give an appropriate charge will not be justified by afterwards giving one equally free from error. In the present case the defendants requested the Court to instruct the jury, that the giving of the note by the plaintiff, to the. defendants, created the presumption of a settlement of accounts up to the date of the note, and that this presumption, if unexplained, was evidence of such a settlement. We think the Court should have given this charge, as it is strictly proper, under the facts disclosed in evidence. 2. After giving the charge as requested, it would have been proper to explain to the jury that the giving the note raised the presumption of settlement of all outstanding accounts between the parties; but that this was a presumption which could properly be rebutted by other facts and circumstances. The charge given in this case was less extensive than the one which the defendants asked for, and waived the question of any presumption arising out of the giving of the note by stating to the jury that it was not conclusive.- It is not important to consider the refusal to give the other charge requested, as the conclusion that there is error is already attained. Let the judgment be reversed and the cause remanded.