HOLLINGSWORTH vs. MARTIN, use &c., 23 Ala. 591

GIBBONS, J. The defence attempted to be interposed to the liability sought to be enforced against the plaintiff' in error, is two-fold: 1st, the statute of frauds ; and 2d, that the condition attached to the promise, as shown by the evidence, has not been complied with. The defendant below, after the testimony was all in, and consisting as it did of the evidence of one witness alone, requested the court to charge the jury, that, if they believed the evidence, the plaintiff could not recover. This charge the court refused, and the defendant excepted.

The refusal to give this charge, in our opinion, raises the same question as if the defendant below had demurred to the evidence, and called upon the court to declare the law thereon. The question thus presented involves the two-fold aspect of the defenco above mentioned. The plaintiff’s right to recover under the proof must rest either upon the fact that he had performed services for one o the Hollingsworths’ estate, or upon the promise that if Martin would produce the receipt of which he had spoken he would be indebted to him in that amount.

The testimony is, that the plaintiff and defendant came into the office of witness together, «H and then plaintiff claimed of defendant a certain amount of money for services rendered one of the Hollingsworths’ estate. The defendant refused to pay the demand, because he held the note of the plaintiff for about the same amount. The plaintiff then said, he had paid the note, through Henry L. Martin of Tuskaloosa, to the defendant. The defendant left the note with witness, and stated that, if the plaintiff produced the receipt, he would be indebted to the plaintiff the amount thereof.

The plaintiff afterwards did produce the receipt offered in evidence. The evidence does not disclose who held the note at the time of trial; whether it was then in the possession of the plaintiff, or whether it was produced by the witness, it being still in his possession since it was left there by the defendant, does not appear. ■ We think the legal presumption is, that the note yet remains in the hands of the witness, until the contrary is shown.

Assume this to be the fact for the present, and assume further that the plaintiff based his right to recover on the fact that he had rendered services to the estate of one or both of the Hollingsworths. It is shown that the defendant was the agent of the administratrix of one of those estates, but we do not see how this changes the legal aspect of the case.

It woirld seem clearly, on this hypothesis, to be a demand of the defendant that he should pay the debt or demand of a third person, and any parol promise which he may have made in reference to that demand would not be binding upon the defendant, unless the same was in writing, and upon a legal consideration. Our conclusion, therefore, is, that if the plaintiff had declared for those services against the defendant, the claim would have fallen within the statute of frauds.

But suppose the plaintiff does not rest his right to recover against the defendant upon the fact that he rendered the above mentioned services for one or both of the estates above mentioned, but relies upon the admission of the defendant, that, if the plaintiff produced the receipt spoken of by the witness, “ he would be indebted to him” in the amount thereof.

When the note and receipt are brought together they do not at all correspond; although we are bound, in the view’of the case which we are now taking, to give the plaintiff the benefit of every conclusion which the evidence fairly tends to prove, still we do not see how we can legitimately refer the receipt to the note, or in any way connect them together, as upon their face they are entirely inco - herent.

We are left solely to the conclusions which the law draws on the face of these two papers, as there is no testimony explaining the apparent incongruities, or in any manner connecting them, except the conversation detailed by the witness between the plaintiff and the defendant. ' On the face of the papers alone, we think the court was bound to say that they were wholly and entirely disconnected, as the receipt is anterior to the note by some five days in its date and for a different amount.

It is true we may imply that the note and receipt were given for the same debt, but we cannot do so fairly from the evidence, because the law from the face of the papers draws a different conclusion. Besides, if we attempt to arrive at conclusions by implications, we may as well imply that Martin owed two debts, and that the papers above mentioned referred to those distinct debts, as that they referred to one and the same debt. We must confine our conclusions to those that the law draws from the papers themselves, until the apparent incoherence is explained by proof.

This proof the record does not supply, and our conclusion is, that the charge asked should have been given to the jury as asked. This is decisive of the case so far as respects the reversal. Several other errors are insisted upon in argument, but we do not deem it important to consider them in detail. We simply remark, that, in charging the jury, it is the duty of the court to confine itself to the testimony before it.

The judge ought not to assume that any fact is proved, unless there is some testimony tending to prove it, and then it should be left hypothetically to the jury, leaving it for them to say whether such fact is proved or not, or whether or not they believe the evidence. As the same things will not probably arise on another trial, we for • bear remarking further upon the other portions of the bill of exceptions. Let the judgment of the court below be reversed, and the cause remanded.