Courtland v. Tarlton

8 Ala. 532 | Ala. | 1845

COLLIER, C. J.

The letter in question was written by the defendant Tari ton alone, and commences with an. acknowledgment of the receipt of the plaintiff’s letters. .The writer says : «In replying to that part of your letter which refers to T. & B’s notes now unpaid, 1 would remark, that the consideration for which these notes were given, has in part failed. The property which you have sold to D. & A., only one note has been paid; that sold to B., one note has been paid ; and that sold to R. not one cent has been paid.” The question is then asked, if it would not be very hard for the defendants to b'e compelled to pay their three notes to the plaintiff, when the sale of the lots made by him turns out to be unproductive. Avowing his desire to do what was right, the writer declares his willingness to pay him in proportion to the amount paid hy the purchasers ; more he thinks cannot be asked. Should any further sum be collected, he assures the plaintiff that he shall have his proportion. He then remarks, that the amount that the defendants owe the plaintiff, is a portion of the entire sum due from the purchasers, and that the'latter never expected tó be paid, if the defendants failed to make collections. That be infers from the tenor of the plaintiff’s letter that the latter supposed the defendants had made full collections, undeceives him in that particular, and says that if he will instruct him, he will see the plaintiff’s proportion .paid at once.

The fair inference from this letter is, that the plaintiff demanded payment of the three notes which the defendants had given for the payment of his compensation in selling the lots. Tarl-ton endeavors to convince him of the injustice of such a requisition, and proposes to pay him in proportion to the amount collected of the purchasers. This was certainly a refusal to comply with’the plaintiff’s demand, and an offer to pay him what was believed to be right. What is this but a proposition for an adjustment, a promise made with a view to compromise. In this view it is unimportant whether the true character of the letter be a question of law or fact; for whether it be the one or other, the plaintiff is not prejudiced by its reference to the jury, but had an additional chance of success afforded; and cannot therefore al-ledge the irregularity as an error.

It is laid down, that an offer to do something by way of compromise, as to pay a sum of money, allow certain prices, deliver certain property, or make certain deductions, and the like, are inadmissible evidence against the party making them. This privilege it is said, is strictly construed; for if the proposition is not made expressly without prejudice, or, if it do not carry on its face, the character of a peace offering, the privilege is gone. [2 Phillips’ Evidence, C. & H.’s 218-9.] Further, bofh in England and America, the nature of the negotiation has been looked to ; and that the offer has been intended to be without prejudice, has been inferred from its being plainly an offer with a view to compromise. “ Offers of sums, prices, or payments, made during an attempt to compromise, are not admissible, if not accepted.” [Mills, J., in Evans v. Smith, 5 Monr. Rep. 363-4.] But it was said to be otherwise as to the existence of a fact, [See 2 Phil. Ev. C. & PI.’s Notes, 219 to 223.] .

The Circuit Judge did not instruct the jury to discard the independent facts stated in the letter of 1838; he very explicitly charged them, that if the letter was written with a view to a compromise, and the promises contained in it were made for that purpose, then the defendants were not 'bound by them. That the promises were not obligatory upon them, and not that the entire letter should be disregarded. It does not appear .that the Court was asked to give more specific instructions. The letter we have seen indicated its true character upon its face; the exposition of the law was correct 5 and the judgment of the Circuit Court is therefore affirmed.