Gaines v. Shelton, 47 Ala. 413

Gaines v. Shelton

47 Ala. 413 | Ala. | 1872

PETES,S, J.

1. There can be no doubt, that such an instrument as this contains several stipulations, a breach of any one of which would constitute a cause of action and in declaring on it the plaintiff may assign a breach on any single one of them. — Rev. Code, § 2633. The first stipulation of the contract above set out is a promissory note, and it has been so treated by this court from an early day. — McRae v. Raser, 9 Port. 122; S. C. 5 Smith Cond. Ala. Rep. 435; Winston v. Metcalf, 7 Ala. 837; Story on Prom. Notes, p. 1., There was, then, no error in overruling this objection.

2. The language of the bill of exceptions as to the evidence proposed is somewhat uncertain. In such case it will be so construed, if possible, as to sustain the ruling of the court. — 23 Ala. 345.

The plaintiff objected to the defendant’s attempt, as is shown in the bill of exceptions, “ because the answers” to the defendant’s questions “tended to add to, vary and change the written contract between the parties, and that the same could not he so added to, varied and changed by parol evidence.” On these grounds the court sustained the objection. This was certainly correct. — Shepherd’s Digest; p. 599, § 1.

It is trae, that all contracts are subject to be impeached for a want of consideration in the first instance; because where there is no consideration, there is no contract. It is nudum pactum, and has no obligation whieh the law wil 1 enforce. — 2 Bl. Com. 446; Sturgis v. Crowningshield, 4 Wheat. 197, Marshall, C. J.; 1 Pars. Con. p. 32; Beal v. Ridgeway, 18 Ala. 117; Holt v. Robinson, 21 Ala. 106; Rev. Code, § 2632. And so me contracts may be impeached *417for failure of the consideration, in whole or in part. — Long v. Davies, 18 Ala. 801; 1 Pars. Con. 462, 5th ed. and notes. It is presumed, however, that this latter rule is not general, but only applies where the consideration consists of several parts, which can be apportioned. "Where the consideration is entire, as is the case here, (18 Ala. 441), if it is sufficient at the making of the contract, it cannot fail, because the consideration turns out to be less valuable than was expected. In such a ease, where the parties have fixed the consideration themselves, and stated it in the contract as part of the agreement, this precludes an inquiry into the question of a failure of the consideration, unless there is fraud, misrepresentation or deceit. — 1 Pars. Con. 456, supra. Because there can be no failure of consideration, when a party gets what he contracted to receive. The hiring of a slave for a fixed period of time imposes upon the hirer a liability to pay the price agreed on at the time it may fall due, xmless the person who hired out the slave defeats the contract by his own conduct. The consideration in this instance is the right to use the slave for the time agreed upon. It is a sale of his services for the time fixed by the agreement of the parties. — Ricks v. Dillohanty, 8 Port. 133; Perry v. Hewlett, 5 Port. 319. If the right to convey this exists at the time of the hiring, and it is actually conveyed, there can be no failure of consideration afterwards; because it cannot be said that the party, to whom the slave was hired, did not get what he purchased. — 1 Pars. Con. 465, supra. Here it was not attempted to be shown that the consideration mentioned was not tire true one, or that there was a total want of consideration in the beginning, or that the contract had failed by the conduct of the plaintiff, or that there was any fraud or deceit; but it was attempted to be shown by parol that the written contract was different from its written terms, so as to defeat it. This is not allowable, where the consideration, as in this instance, is entire and expressed in the face of the instrument. — Evans v. Bell, 20 Ala. 509; Paysant v. Ware et al., 1 Ala. 160.

The action of the court below was in conformity with these principles. Its judgment is, therefore, affirmed.