74 Ala. 206 | Ala. | 1883
— The original contract of renting for the year 1880 was made while Gordon was vice-president of the corporation, and Barclay was clerk in the store — used, as we infer, for purposes of the corporation. There was exception to the allowance in evidence of declarations by, and negotiations with both Barclay and Gordon, which were-offered and admitted against the objection of the corporation. The declarations and negotiations all related to the contract of renting, and to the rival claims to the rent, asserted by Smith and Wright. The corporation desired the use of the store-house, and Smith and Wright were each willing it should have it. The contention was, whether Smith or Wright should receive the rent.
We consider it unnecessary to decide whether this evidence, at the time it was offered, had been shown to be admissible. Probably it had not. — 1 Brick. Dig. 63, §§ 159 et seq. Before the testimony was closed, it was shown that Gordon was superintending the business of the corporation, and that Barclay had been authorized by him to negotiate, and obtain a lease of the store. His declarations related directly to the business entrusted to him, and were made pending, and in reference to the negotiation. This clearly legalized the evidence. — 1 Brick. Dig. 809, § 86.
The remaining questions arise on the charges given and refused, and these present for our consideration the interpretation of the guaranty embodied in the note sued on. It is contended for appellant the guaranty is an original, independent obligation, casting on the coal and railroad company no duty whatever, in reference to the defense of Wright’s claim. We do not so interpret the language employed. It resembles a covenant of good title in a deed of conveyance. The grantee in such deed can not yield voluntarily to an adversary claim, without taking upon himself the duty and burden of showing that such adversary claim is paramount to that of his grantor. In the present case, it was clearly contemplated that there should be a trial and test of the validity of the-set-off. transferred by Smith to the coal and railroad company. Smith had the unquestioned right to have this question tried, unless it is affirmatively shown the defense would have been unavailing. Brandt on éur. and Guar. §§ 84-6. If, by the terms of the contract, the ownership of Wright’s bond passed to the corporation (it is not shown it did not), then 'the fact that Wright claimed the rent-money as exempt to him under the statute, would have been no answer to the plea of set-off. The rule is different, when one judgment is sought to be set off against another. — ■ Thompson on Homestead, §§ 892 et seq.
The charges given are in harmony with these views, while those refused are not.
This is apparently a hardship on the corporation, but it was brought on it by the terms of its own contract, and by its voluntary payment of the Wright claim.
Affirmed.
