118 Ala. 369 | Ala. | 1897
1. If there was error in sustaining
2. It was admitted on the trial, that the complaint and the pleas,- — 6 and 7, — were fully proved. The case was tried by consent, by the presiding judge, without a jury, with finding and judgment against defendant, on joinder of issue on replications 1, 3 and. 4 to plea 7, tc which replications, demurrers were overruled.
3. The plaintiff had a claim either against the defendant, J. 0. Booth, its treasurer, or against J. B. Trimble & Co., the bankers Avith whom he deposited the money. If the facts set up in the 7th plea are true, and constitute a good defense for defendant, it is upon the ground, that he deposited said funds in the bank, not as his OAvn money, but as the money of the plaintiff, Avith such distinguishing ear-marks, as that all Avho touched, them would be charged with notice of the trust, and the' cestui que trust, — the plaintiff, — could trace and assert its right to them. A deposit by defendant in his representative capacity, as gratuitous bailee for the plaintiff, under the facts set out in said plea, released him from personal liability for the safe keeping of the deposit, and rendered the bank liable on its failure to plaintiff. — Ditmar v. Bogle, 53 Ala. 169; Lehman v. Robertson, 84 Ala. 489, 491; Henry v. Porter, 46 Ala. 293; Story on Bailments, (8th ed.), §11.
4. The defendant seeks refuge from liability on the note, on the well recognized principle, that if a claim is Avitliout legal merit, and is clearly and absolutely unsustainable, at law or in equity, its compromise, and promise to pay it, whether its legal validity was knoAvn or not at the time, constitutes no sufficient legal consideration for a release or agreed compromise. — Thompson v. Hudgins, 86 Ala. 93; Russell v. Wright, 98 Ala. 654; Ernst v. Hollis, 86 Ala. 513; Prince v. Prince, 67 Ala. 565; Prater v. Miller, 25 Ala. 320.
So far as the claim against defendant Booth is concerned, it is admitted by the replication, that, without
5. As we have said, the plaintiff had a-claim for-this money, either on the defendant or .on-Trimble’& Oo. — i' against the defendant, fif he deposited th'e- monéy on his own account, or against Trimble & Co., if he deposited it, in his representative capacity, as set out in the 7th
6. The plaintiff introduced as a witness, one BroAvder, who, after testifying that he was the secretary of the plaintiff corporation, and that the note sued on was executed by defendant, was ashed by plaintiff’s counsel: “What was the agreement between plaintiff and defendant as to the giving of said notes?” — the one sued on, and the others given, Avhich had been previously paid by defendant. The defendant objected to said question, upon the ground, that the same Avas illegal and irrelevant, and called for illegal testimony, Avliich objection Avas properly overruled. It is always permissible, where a note, as here, does not express on its face for what it Avas giAren, to show the real consideration, (Reader v. Helms, 57 Ala. 440); and it is well settled, “that the consideration of contracts in writing is in general open to inquiry, and it is not an infringement of the rule excluding parol evidence to add to, vary, or contradict writings, to receive parol evidence of the actual consideration, for the purpose of determining its validity, or its failure, or that from any cause it is sufficient or insufficient to support the contract.” Ramsey v. Young, 69 Ala. 157; Davis v. Snider, 70 Ala. 315; 1 Greenl. Ev., §185; 1 Parsons on Notes & Bills, 194.
The witness testified that it. was agreed by the-plaintiff, that it would release defendant and his sureties on his bond as treasurer, and all claims upon this fund against all other persons upon the giving of the notes, and that, to the best of his recollection, upon the giving •of the.notes, the bond was surrendered;
7. The witness Avas asked, if he had the minutes of the
The plaintiff introduced two other witnesses, who also testified, as the bill of exceptions states, in substance, to the same effect, as the first witness.
The defendant introduced J. C. Booth, the defendant, as a witness, “who testified in substance, that he was the treasurer of the defendant corporation, and that the money Avas on deposit to his credit as treasurer of said corporation, with J. B. Trimble & Co., bankers, and that the only consideration of the giving of said notes was the agreement of the company to release him and his securities from said bond as treasurer.” This was all the evidence.
The court rendered judgment in favor of the plaintiff, and in this there was no error. Without reference, specially, to replication 1, those marked 3 and 4, on which issue was joined, were proved by the great preponderance of the evidence, entitling plaintiff to judgment.
Affirmed.