Opinion
6 Div. 631.
March 25, 1937.
Appeal from Circuit Court, Jefferson County; J. F. Thompson, Judge.
Smith, Windham, Jackson Rives, of Birmingham, for appellant.
Chas. W. Greer, of Birmingham, for appellee.
This is an action of assumpsit on the common counts, for money due on account, and for money due for work and labor done for the defendant's intestate.
The pleas were the general issue, pleaded in short by consent, with leave to the defendant to show set-off and recoupment.
The money, as the evidence goes to show, is claimed to be due as salary earned by the plaintiff as an employee of defendant's intestate as salesman or sales manager in intestate's business, conducted as the "Cole Spice Company."
The burden was on the plaintiff, not only to show the relation of employer and employee, and an agreement to pay a stated sum, but to show also that the salary was not paid at and when due. To state the proposition in other words, the plaintiff had the burden of showing the contract and its breach. Pollak v. Winter, 173 Ala. 550, 55 So. 828; Pollak v. Winter, 166 Ala. 255, 51 So. 998, 52 So. 829, 53 So. 339, 139 Am.St.Rep. 33; Cook Co. v. Malone Sons, 128 Ala. 662, 664, 29 So. 653; Rice v. Schloss Kahn, 90 Ala. 416, 7 So. 802.
The evidence was not only in conflict as to the relation between the parties, but the weight of the evidence goes to show that the contract to pay, if there was such contract, was not breached.
In these circumstances the trial court, after hearing the evidence given ore tenus, and observing the manner of the witnesses, was in a better position to pass upon the credibility of the testimony. After mature consideration we are not able to affirm that the conclusion and judgment of the lower court was erroneous.
Affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.