93 So. 902 | Ala. | 1922
On well-established principles of law, the bill of complaint is clearly without equity.
Conceding that J. A. Carr is, as alleged, the real owner of the note, and that he therefore had the authority to make, and did in fact make, the alleged agreement with complainant at the time he indorsed the note — *172 viz. that the time for the payment of the note would be extended from time to time until August 1, 1922, beyond the date of its expressed maturity — that agreement cannot be asserted either in law or in equity, because it is in violation of the elementary rule that parol contemporaneous agreements are not admissible for the purpose of adding to, altering, contradicting, varying, or explaining the terms of a contract in writing, upon its face complete. 6 Michie's Digest, p. 351.
This rule is as applicable to bills of exchange and promissory notes as to any other contracts, as numerous adjudicated cases show.
In the early case of Sommerville v. Stephenson, 3 Stew. 271, the subject was quite fully discussed, and it was held that, in an action by an assignee against an assignor, the plaintiff could not excuse his lack of diligence as against the maker by showing a parol agreement between himself and the assignor that the latter would not be responsible for payment of the note until he had waited for two years on the maker, the note being in terms payable immediately. Still more specifically, in Doss v. Peterson,
In Corpus Juris the consensus of the authorities is thus stated:
"It cannot be shown that the time for the payment of the obligation, as agreed upon by the parties is different from the date of the maturity as appearing in the instrument, or that there was an agreement at the time of the making of the note that it would be renewed at maturity." 22 Corp. Jur. 1095.
Other illustrations will be found in Gliddens v. Harrison,
The rule of course as aptly applies to a parol agreement between indorser and indorsee as to one between maker and payee; and the effect of the agreement here sought to be enforced being to change the maturity of the debt, and to thereby contradict and alter one of the material and vital terms of the obligation, the agreement is clearly inadmissible.
If the Southern Motor Company collects the debt, as payee of the note and holder of the collateral, that will of course effect a complete discharge of the maker and the indorser, even though Carr be in fact the beneficial owner of the debt; and the relations between said company and Carr can be of no concern to complainant as indorser of the note.
Still conceding the beneficial ownership of Carr, as charged in the bill, we know of no principle of law which would operate, in favor of the maker or indorser, to forbid the foreclosure of the note by the payee, the Southern Motor Company, in its own name, according to the tenor of the note; nor, indeed, is such a contention insisted upon in the brief for appellant.
Appellant conceives that, as the submission was on a motion to dissolve on the sworn answer and affidavits, dissolution could not properly be predicated on the want of equity in the bill. But the rule was settled otherwise in Williams v. Berry, 3 Stew. P. 284 (1833), where it was held that —
"Notwithstanding, the motion may have been to dissolve, on bill and answer, alone, if the court be satisfied, that the case, as presented by the bill, does not contain sufficient equity, to warrant relief in chancery, then, there can be no error, in dissolving the injunction, and dismissing the bill, for that cause."
See, also, Norris v. Norris,
The decree of the circuit court dissolving the temporary injunction is free from error, and will be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.