Brassell v. Williams

51 Ala. 349 | Ala. | 1874

B. F. SAFFOLD, J.

The appellant sued the appellee in assumpsit, for breach of a contract, which is set out in his complaint, in legal effect as follows: The defendant, as executor of James H. Judkins, held two notes on the plaintiff, for $1,600 each, one of which was in suit, and the other was not due. He agreed with the plaintiff to take from him as cash a note, past due, on George Judkins, for about $251, and another note on M. H. Molton and J. C. Henley, for $3,250, not due, which he promised to collect, together with a claim for improvements made by the said plaintiff on the plantation of the defendant’s testator, and a gin, gin-band, and other gear belonging to the gin, the value of which was to be determined by referees appointed by the parties. The notes and the claim were to be applied in satisfaction of the defendant’s demand, and his suit was to be dismissed. Any balance of the proceeds of the note of Molton and Henley was to be returned to the plaintiff. Performance of the agreement on. the part of the plaintiff is alleged; and the breach assigned is, that the defendant refused to comply in any respect.

1. A breach of a valid contract imports some damage. Such damages as may be presumed necessarily to result from the breach need not be stated with any great particularity in the complaint. 1 Chit. Plead. 338; Barrusco v. Madden, 2 Johns. 149; Bagby v. Harris, 9 Ala. 173. The appellant could not set up his mere agreement, as a defence to the suit of the appellee, as executor. He would have to show that his assigned notes had been collected. His claim for improvements, &c., if due from the executor instead of his testator, would not be available, either by way of set-off or recoupment. McGehee v. Slater, January term, 1874. Although he meant only to pay the debts which he acknowledged, the promises of the appellee, together with his acceptance of the notes, may have caused injury to him. This injury or damage may be such as necessarily resulted from the neglect or refusal of the appellee to perform what he had undertaken.

2. A mere agreement to accept less than the real debt is nudum pactum. But the acceptance of property in satisfaction of a preexisting debt, irrespective of its value, will have the effect to extinguish it. The notes of a third person accepted would be a good consideration. Pearson & Fant v. Thomason, 15 Ala. 700; Goodnow v. Smith, 18 Pick. 314.

The executor must do his duty to the estate he represents; but this duty will not protect him personally against any injury he may have inflicted on the appellant by his breach of agreement. The demurrer to the special count ought to have been overruled.

The judgment is reversed, and the cause remanded.