52 So. 426 | Ala. | 1910
This is the second appeal in the cause.—Byrd v. Hickman, 159 Ala. 505, 48 South. 669. The sole question considered and decided on that appeal was whether the agreement made by Byrd to Hickman, over the phone and not in writing, to pay, as Hickman contended, the Lewis mortgage debt to Hickman, mortgagee, was within the statute of frauds pleaded in the cause.
It is now contended, upon amended (after reversal here) counts 4 and 5, that Byrd’s alleged promise to
After determining the question presented, as indicated, in the former appeal, out of the abundance of caution we expressly excluded an intent to consider or
The amendment was made by the addition of counts 4 and 5. They will be set out in the report of this appeal. As appears, these counts proceed on the theory that Byrd’s promises to the Lewises to pay the Hickman debt was based upon a new consideration of advantage to Byrd or of detriment to the Lewises, or both advantage and detriment, respectively. If supported by a consideration, that promise of Byrd’s was without the statute of frauds and enforceable by the beneficiary, the creditor, Hickman, though not in writing.
It is insisted in brief that counts 4 and 5 effected to bring in a new cause of action. The question was not presented or decided below. After demurrers to counts 4 and 5 were overruled, the defendant pleaded, besides the general issue, want of consideration and the statute of frauds. There was no plea of the statute of limitations to the cause of action' averred in counts 4 and 5. On these counts (4 and 5) the issues were only'those raised by the pleas indicated. It follows, of course, that the general affirmative charge requested by defendant invoked only a ruling of the court upon the issues of
We can conceive no case Avhere the general affirmative charge could serve in lieu of objection to the allowance of an amendment alleged to Avork the introduction of a neAv cause of action, or of motion to strike, on that account.—Tenn. & Coosa R. R. Co. v. Danforth, 112 Ala. 80, 20 South. 502; Stewart v. Goode, 29 Ala. 476.
The contention, grounded on some of the assignments of demurrer to count 5, that that count undertook to enjoin tAvo distinct causes of action, cannot be sustained. Beading count 5 in connection Avith count 4,. as adopted by count 5, it is clear that the engagement declared on in count 5 Avas that averred in count 4, Avith the addition thereto of an element incorporated therein by mutual assent of the parties, viz., the agreement of Mrs. Loavís to transfer to Byrd the rent note for 1907. No neiv consideration other than mutual assent of Lewis and Byrd Avas necessary to support the addition so made to the agreement set forth in count 4.—Cooper v. McIlwain, 58 Ala. 296; 2 Mayfield’s Dig. p. 798.
The chief matter of controversy on this appeal is whether the promise of Byrd, as described in count 4, to pay the Hickman debt, was supported by a new and independent consideration. It is insisted for appellant that the rule that one’s doing, or agreeing to do, or not to do, that which he is in duty bound to do, or not to do, is not a sufficient consideration to support a promise by another.
The rule is of course sound. — 1 Pars. Contr. p. 475, and notes.
We see no escape from the conclusion that, as far as the case made on count 4 is concerned, the application of the just-stated rule to the 'evidence before the court
Count 5, and the evidence tending to its support, present a very different status from that arising out of count á and the evidence in its support. The count alleges that Mrs. Lewis promised to assign and deliver to Byrd, and later did so, a rent note from one Davis, for the rent of her land for the year 1907. It does not
The assignment and delivery of this rent note obviously afforded a new and independent consideration, of benefit to Byrd or his concerns and of disadvantage to-Mrs. Lewis, for the promise to pay the Hickman debt, if the assignment and delivery of the rent note was not merely a payment on the Lewises’ debts to Byrd or to. his concerns. It was open to inference, by the jury, from the evidence, which has been carefully considered,, that such assignment and delivery was not a payment on the debt. It is insisted in brief for appellant that an agreement concluding otherwise, as we have indicated, than as payment on the Lewis debts to interests represented by Byrd, would have been so irrational as to-forbid credence. That argument must be addressed ta the jury. Whether an asserted agreement is peculiar, or so unusual as to indicate irrationality, must in fact depend, largely, upon the point of view, as well as the circumstances surrounding the parties. A' contract that offends no law may be peculiar and may bear grievously upon one of the parties thereto, yet we know of no judicial right to avoid it because the accepted terms are onerous.—Lee v. Cochran, 157 Ala. 311, 47 South. 581.
A careful consideration of the-errors assigned as upon rulings of the court in the admission and rejection of evidence shows them to be without merit.
The addition of count 5 did not introduce a new cause of action. — Code, § 5367; Ala. C. C. & I. Co. v. Heald, 154 Ala. 580, 45 South. 686. Hence, even if the statute of limitations is later pleaded thereto, the court may, upon request, if the evidence is again as now, affirmatively instruct the jury that it is not sustained.
The chief issues are of fact, and nothing we have said in discussion must be taken as intimating an opinion thereon.
Reversed and remanded.