Forst v. Leonard

112 Ala. 296 | Ala. | 1895

McCLELLAN, J.

There was but one contract between Mrs. Forst and her husband on the one hand, and Leonard and Alfred on the other. This contract was for the building of a house by the latter parties for the former. It is not stated in the contract whether the house was to be of one or more stories, but it was to be built according to specifications therein referred to, but not incorporated or attached, and nothing' in the contract as set out in the complaint is at all inconsistent with the idea that the building of a one story house was the contemplation of the contract itself and provided for in the specifications made a part thereof. The contract recites that it is entered into ‘ ‘by and between S. J. Alfred and H. N. Leonard, doing business under the firm name of Alfred & Leonard as contractors and builders, of the first part, and Mrs. M. Forst and A. Forst, her husband and agent, parties of the second part.” This contract stipulates for the execution of a good and satisfactory bond by Alfred and Leonard for the faithful performance of the building contract, its “stipulations and agreements, and to complete the house ready for occupancy in ninety days from the date of” the contract. The bond which was executed by these contractors and others as sureties in the penal sum of $1,000 contains the following defeasance : ‘ ‘The condition of this obligation is such, that whereas the said H. N. Leonard and S. J. Alfred have contracted with the said Mrs. M. Forst and her husband, A. Forst, as follows : The said H.N. Leonard and S. J. Alfred have contracted with the saidM. Forst, and her husband, A. Forst, to build a one-story frame dwelling, now, therefore, if the said H. N. Leonard and S. J. Alfred shall truly and faithfully perform all the obligations of the said contract, then this obligation shall be null and void, otherwise to be of full force and effect.” The complaint, upon this bond for breaches of -said contract, alleges that at the time of the execution of the bond the contract was entered into by H. N. Leonard ■and S. J. Alfred jointly for the building of a certain ohestory dwelling house in the city of Bessemer, and that the said bond, set out in the complaint, is the bond which the said H. N. Leonard and S. J. Alfred obligated themselves to execute in and by the terms of said contract. There is, in our opinion, no discrepancy between the contract indicated by the reference in the bond and the contract set out in the complaint as being that intended to be secured by the bond. The bond recites a contract to build a one-story dwelling house. The contract set out is in terms to build a dwelling house, and there is nothing in it indicating that the house is to be other than a one-story house. The bond recites that the contract was entered into by H. N; Leonard and S. J. Alfred; and this is literally true; for the contract expressly sets forth that it is ‘ ‘made and entered into by S.' J. Alfred and H. N. Leonard.” It is true they describe themselves as ‘.‘doing business under the firm name of Alfred & Leonard, as contractors and builders, ” and sign the papers under the different name of “Leonard & Alfred,” but whether their firm name be the one or the other, the fact remains that they entered into the contract, according to its own recital, in their individual names, and, further, that the contract is the joint and several contract of IT. N. Leonard and S. J. Alfred whether it be also the contract of “Alfred & Leonard, ” or “Leonard & Alfred” as a partnership or not. It was not essential for the bond to set out the terms and sioecificatidns of the contract to build the dwelling, either under the statute of frauds or in view of the inquiry 'whether the bond and contract for any other purpose are to be read together. A sufficient reference in the bond to the contract as one ‘ ‘to build a one-story frame dwelling, ’ ’ makes all the stipulations of the contract a part of the bond, and the bond is not to be taken merely as security for the building at some indefinite time, and in some way some sort of “a one-story frame dwelling house.” Nor is it any objection to reading these papers together, assuming that the bond sufficiently refers to the contract, either for the purposes of the statute of frauds or otherwise, that for aright that is recited in the bond the contract may have been a verbal one ; for as said by Kekewioh, J., in Oliver v. Hunting, L. R. 44 Ch. Div. 208: “If you find a reference to something, which maybe a conversation, or may be a written document, you may give evidence to show whether it was a conversation or a written document; and, having proved that it was a written document, you may put that written document in evidence, and so connect it with the one already admitted or proved.” — Ridgway v. Wharton, 6 H. L. C. 238.

Then the only remaining question arising in this case is whether the reference in the bond to the contract is sufficient in itself, or as aided by admissible parol evidence, to make the contract set out in the complaint part and parcel of the bond. Waiving inquiry whether the reference is filled by the production of the written contract, we shall assume that parol evidence is -necessary. Is it admissible? We think there can be no doubt about it. Its only necessary office in the case is the identification of a contract shown by the bond itself to have been entered into between named parties for a certain purpose, and to be an existing undertaking. We do not understand it to have ever been the law that parol evidence was inadmissible under these circumstances for this purpose. Without such evidence the whole contract is existent and evidenced by writing. The oral evidence does not add or take away a single term to or from it. But merely by clearing away an ambiguity or uncertainty in the reference of one part of this wholly written contract to another,- such evidence brings the separated parts together. But if the rule were ever otherwise, it is not so either here or in England at the present time. To the contrary, it is thoroughly well established, there and here, that where a contract, required to be in writing by the statute of frauds, rests upon the contents of two separate papers, and the only thing lacking to a compliance with that statute is the identification of the two papers in their relation to each other, that identification may be supplied by oral evidence. We need only cite some of the authorities. — Long v. Miller, 4 C. P. D. 450; Cave v. Hastings, 7 Q. B. D. 125; Oliver v. Hunting, L. R. 44 Ch. Div. 205; Kennedy v. Cramling, 33 S. C. 367; Thayer v. Luce, 22 Ohio St. 62; Work v. Cowhick, 81 Ill. 317; Wood on Statute of Frauds, §-364; Beckwith v. Talbot, 95 U. S. 289; Jenkins v. Harrison, 66 Ala. 345; Robbins v. Webb, 68 Ala. 393; Oliver v. Ala. Gold Life Ins. Co., 82 Ala. 417.

There is no merit in the suggestion that-these papers cannot be taken together because the contract is signed by Leonard & Alfred only, and the bond is- signed by them and others. — District of Columbia v. J. H. & E. K. Johnson, 1 Mackey, 51.

Our conclusion, therefore, is that upon proof of the three facts alleged in the complaint -which rest, or are supposed to rest, in parol, in connection with the bond and building contract, the plaintiff would be entitled to recover. The circuit court erred in sustaining the demurrer to the complaint. Its judgment is reversed, and the cause remanded.

Reversed and remanded.