Culver v. Caldwell

| Ala. | Nov 15, 1902

SHARPE, J.

G-. M. Hanson brought this suit and herein Avill be referred to- as plaintiff. After obtaining judgment he died, and the appeal is taken as againsi the administrator of his estate.

Plaintiff and another Avere sureties on the official bond of the chief clerk of the Department of Agriculture, and defendant was' Commissioner of Agriculture. The chief clerk difed and shortly thereafter the examiner of public accounts entered upon an examination of accounts in the Department of Agriculture and incidentally upon the investigation then had, plaintiff’s co-surety paid the State through defendant $4,000 on a? indebtedness, real or supposed, amounting ' to a little more than $5,000 and which defendant claimed accrued on account of acts and conduct of.the chief clerk and not of himself. Blaint-iff being requested by defendant to pay or assist in paying another thousand dollars at first objected, but' those two reached a mutual understanding whereby plaintiff gave his note -payable to- defendant who was to sell the same and apply the proceeds on- the balance supposed to be due the State, and at- the same time defendant gave the plaintiff the writing here sued on, which is as follows: “Union Springs, Ala., Sept. 15th, 1897. Received of (1. M. Hanson hisi note for one thousand dollars payable one month from date at First National Bank of Montgomery, Ala., and I agree with him that this will relieve him entirely of all claim against him as surety on bond of the late I). F. Sessions as¡ chief clerk ’of Agricultural Department, Sítate of Ala., and I agree to refund same to said G. M. Hanson as fast as I. can spare same from my salary as State Agricultural Commissioner. ['Signed] I. F. Culver.” Failing in an attempt to raise money on the note as originally made, defendant without plaintiff’s knowledge obtained thereon the signature of plaintiff’s cosurety, then' ha\ the note discounted, paid the State the proceeds, and plaintiff afterwards paid the note. The breach alleged Of defendant’s agreement is a failure to refund according to its terms. .

Treating first of the questions raised by the demurrer, it is to be observed that the complaint is silent as to how the defendant was to perform that part of ' the agreement winch stipulates for the relief of plaintiff from liability on the clerk’s • official bond, and ■ that neither in the agreement itself as set out in the third count, or in other parts- of the complaint is there anything inconsistent with a contemplated dislcharge o'f that liability by payment to the State, or in some other possible Avay, invohdng no offense to public policy. But that anything Avas due the State from the clerk and his sureties is not disclosed by the complaint, the averments being merely that defendant “represented” such to be the fact, and for all that appears in the complaint the liability from Avhich the plaintiff was to he relieved, may have: been that" existing, inchoately by reason’of -his suretyship, irrespective of a breach of the bond. These averments doi not warrant, the assumption, that the note which purports to form the consideration of the agreement in suit, was a mere provision for paying the plaintiff’s own debt. Prima facie the note given defendant is a consideration.for his agreement.

Defendant’s promise to refund is not void for uncertainty.. It is not conditioned upon defendant’s ability to spare from his salary, but that event is¡ named only to fix a time for performance. The stipulation in that regard was meant only to give tire defendant reasonable time to acquire from the expected source, the money to be refunded, and not to acquit him of the obligation to refund in case he found it inconvenient to spare money, from that source. When it can be done consistently with the expressed intention of the parties, contracts must be given a construction by which they will be upheld rather than defeated; and this rule has been applied in cases, closely analogous to- the present one. See Nunez v. Dantel, 19 Wall. (U. S.) 560; Lewis v. Tipton, 10 Ohio St. 88; Ubsdell v. Cunningham, 22 Mo. 124; Jones v. Eisler, 3 Kan. 128. It must be held as a legal conclusion that a reasonable time for performing the stipulation in question had expired before the bringing of this suit which occurrence was long after cessation of' defendant’s official term and salary. The demurrers were properly overruled.

The bill of exceptions fails to show any exception re-, served to> the ruling on defendant’s motion to strike part of the complaint, and consequently that ruling cannot be reviewed. — Holley v. Coffee, 123 Ala. 106.

It was proper to allow the examiner to testify he made the examination of accounts, etc. That fact considered apart from the examiners report, was provable by parol, and was relevant as a circumstance attending and probably materially influencing the transaction between these parties.

It was also proper to admit the examiner’s testimony of admissions, made by-defendant to. effect that he had. caused entries to' be made in the Department’s books showing sales of fertilizer tax tags which were not sold.. That evidence bore on the issue as to whether there was in fact an indebtedness of the chief clerk to the State.

The note plaintiff gave Avas but collaterally involved in this suit, and the fact that it bore two signatures instead of one as indicated by the complaint did not make a material variance. The objections to the introduction of that nóte and those made to the writing sued on, Avere not Avell, taken.

The examiner’s official report, however, should Imve been excluded. It appears to. have been subsequent, to the agreement between these panties and as to them Avas subject to objection as res inter alios acta. There is nothing in the statutes providing for such reports Avhich gives them effect as evidence of facts AAÚth Aihich they deal.

The second plea is as follows: “The want of consideration, in that the contract made by the defendant was made solely to induce Hie plaintiff to pay the debt due by 1). F. Sessions as chief clerk in the Department of Commissioner of Agriculture of the State of Alabama, for Avhich debt the plaintiff as one of the sureties on the bond given by the said D. F. Sessions as such clerk Avas liable, and that the note referred to in the complaint Avas giAren by the plaintiff for the purpose of being discounted and the proceeds thereof applied to the payment of the debt of the said D. F. Sessions due as aforesaid:” Substantially the same facts are set up in the third .plea as constituting a failure of consideration for defendant’s agreement to' rófund. The sufficiency of these pleas is not a question presented by the record. They Avere neither demurred to nor replied to, 'and the rule is that if a plea, on which issue is joined be proved, the issue should be determined in favor of the defendant without regard to Avhether the plea is good or bad. — Wellman v. Jones, 124 Ala. 580" court="Ala." date_filed="1899-11-15" href="https://app.midpage.ai/document/wellman-v-jones-6518433?utm_source=webapp" opinion_id="6518433">124 Ala. 580; Taylor v. Smith, 104 Ala. 587; Winter v. Poole, 100 Ala. 503" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/winter--loeb-v-pool-6515398?utm_source=webapp" opinion_id="6515398">100 Ala. 503; Western Assurance Co. v. Hall, 120 Ala. 547" court="Ala." date_filed="1898-11-15" href="https://app.midpage.ai/document/western-assurance-co-v-hall--brother-6517860?utm_source=webapp" opinion_id="6517860">120 Ala. 547. It is enough to say, AvithoUt setting out the evidence, that defendant’s testimony tends to support all the facts averred in these pleas and a like tern dency is found in plaintiff’s own testimony Avherein he stated among other things that “said note was made for the purpose of being discounted to enable the defendant to. raise the money to pay on the deficit of the said D. F .• Sessions as chief clerk in the Department of Agriculture.” In vietw of-the pleading and evidence the charge requested by the plaintiff should have been refused, and the jury should have been allowed, to determine whether the facts required a finding for the plaintiff or for the defendant.

Reversed and remanded.