Carpenter v. Murphree & Jones

49 Ala. 84 | Ala. | 1873

B. F. SAFFOLD, J.

— The appellees, as transferees, sued the appellants on a note signed by them and A. J. Carpenter, payable to W. R. Parker. The defendant C. N. Carpenter pleaded his release by Parker, in consideration of Rogers’s signing the note, he not having been an original maker, and also of his selling property to Rogers sufficient to pay the debt, the price of which to that amount was credited on the purchase in consequence of the agreement to release him. A demurrer to this plea was sustained. The grounds of demurrer were, want of consideration, and no allegation of release in writing.

A promissory note imparts a consideration. The consideration may be explained when it is not expressed. The explanation of Rogers’s liability, as disclosed by the plea, is, that he bought property from his co-defendant, C. N. Carpenter, and paid him for it by assuming his obligation on the note in suit, under ah agreement with the payee and holder, Parker. If these facts be true, and constitute the only value received by Rogers for signing the note, it is without consideration in respect to Rogers,'unless Carpenter is discharged. The plaintiffs cannot have judgment against both. A written contract, whether under seal or not, may be discharged by a subsequent parol agreement executed, when such is the intention of the parties. Hunt & Hunt v. Barfield, 19 Ala. 117; Wallis v. Long, 16 Ala. 738. Parker’s promise to release Carpenter is supported by the consideration of loss or disadvantage accruing to the latter on the motion of the prisoner. Rogers’s promises to both are supported by benefit to himself. 1 Parsons on Contracts, 431. The contract between the parties is new and independent. No provision of the Statute of Frauds is applicable to the parol agreement set up as a personal defence by Carpenter. Whether Rogers may invoke its aid, and how it may be avoided, are questions not raised in the transcript. It seems, however, that the discharge of Carpenter, and the credit he received on his purchase from him, would render his signing the note in suit an original, and not a collateral undertaking. ,2 Parsons on Contracts, 304-6.

The judgment is reversed, and the cause remanded.