66 So. 655 | Ala. | 1914
The original complaint, which was filed April 7, 1910, contained one count; and that was in trover. On June 23, 1913, plaintiff (appellee) prayed to be allowed to amend his complaint by the addition of counts 2 to 9, inclusive.
“The defendant [appellant] objected to the allowance of the amendment on the ground that the amendment set up cause of action that was a departure from the cause of action set up in the original complaint, and on the further ground that the said counts showed on their face that the matters complained of did not arise out of the same transaction or relate the same subject-matter and set up an entirely new cause of action in each count.”
Like objection was made to the allowance of the amendment introducing count 10. The court overruled the objections, whereupon exceptions were reserved.
Counts 2 to 5 and 9 of the amendment were the common counts. Aside from the dates appearing in these counts, there is nothing in any of them to indicate that a different subject-matter of a litigable character, between the same parties to the original count, was the basis of the claim asserted in the original count in trover. Actions ex delicto and actions ex contractu, “arising out of the same transaction, or relating to the
Under the statutes quoted, it is manifest that the court’s action in allowing the amendment and in overruling the objections' quoted from the bill of exceptions cannot be held for error. The basis of the several claims, asserted in the added counts, and in the original count in trover, was the same transaction — involved the same subject-matter. Inconsistency of claims for liability, asserted in distinct counts, is not,
Under the contract and bond set out in the record, Gambill’s relation was that of a guarantor, not of surety, as appellant contends. — Watkins Medicine Co. v. Lovelady, 186 Ala. 414, 65 South. 52. Notwithstanding the employment of the term “surety,” the substance and effect of the instruments forbid any other interpretation.
D. H. Brown and appellee entered into a contract whereby Brown was to- sell and to have the exclusive right to sell, typewriters, etc., sold him by the appellee, in certain parts of Alabama. A written contract was signed in Birmingham by D. H. Brown on December 13, 1907, which was forwarded to appellee at its place of business in the state of Michigan. It is manifest that the perfection of an engagement between the parties contemplated the execution of the instrument by the appellee. In the instrument thus signed by Brown it was provided that Brown should make a bond to appellee, assuring the performance of the contract by Brown. A. A. Gambill, appellant (defendant), signed a bond, and it was forwarded to the appellee; but in a few days the appellee advised Brown that they preferred a bond in the form used by them in their general business, whereupon Gambill, Brown, and Parker, executed the bond desired, and it was forwarded to the appellee in Michigan. On December 26, 1907, the appellee wired
It is insisted for Gambill that the alteration effected by the elimination of the three counties named discharged him from responsibility under the bond of date December 22, 1907. The terms of this bond referred it to the contract between Brown and the appellee, not to the instrument as it was when signed by Brown on December 13, 1907. If the contract had become a binding obligation upon the principals, and thereupon the basis and extent of the assurance given by the bond of date December 22, 1907, and the terms of the contract had been thereafter changed by appellee, even with Brown’s consent, Gambill, as guarantor, would have been discharged from his obligation under the bond. — • Anderson v. Bellenger, 87 Ala. 334, 6 South. 82, 4 L. R. A. 680, 13 Am. St. Rep. 46; Ala. Fidelity Co. v. Ala. Fuel Co., 190 Ala. 67 South. 318. It was contended by appellee that the contract’s execution was not perfected by the signature of the appellee until December 27, 1907 (the day succeeding the sending and receipt by Brown of the message wherein the elimination of the three counties was suggested), and the change was agreed to by Brown; and that Gambill was advised of the proposed change by Brown and assented thereto be-. fore the consummation of the contract on December 27, 1907, and consented to the preparation and transmission of Brown’s telegram agreeing to the change. These contentions of the respective parties raised an
It is plain from the record that there was evidence to support and to justify the conclusion and judgment establishing liability of the guarantor, the items of which the evidence disclosed in detail.
There was no special plea interposed by the defendant, as was the case in Ala. Fidelity Co. v. Ala. Fuel Co., 190 Ala., 67 South. 318, presenting the defense, against- the guarantor’s liability, that the plaintiff had discharged the defendant, guarantor, by failure or omission to reasonably advise the defendant, guarantor1, of the dereliction of Brown in performing the contract, the performance of which by Brown the defendant had un
The witness was allowed to testify that the contract Avas not in force and effect until approved by him. Objection was made to the question inviting this testimony, and also motion to exclude the answer was seasonably made. The single ground of both objection and motion was that the “contract Avas the best evidence” of the matter sought to be elicited. Without affirming the admissibility of the testimony elicited under the issues on the trial, it is clear to ns that the ground of the objection and of the motion Avas unsound. The contract itself was not the best evidence of when it became a contract — the dominant issue of fact contested on the trial. The contract did not contain any specific provision as to when it should be or was binding. On its face it appears, quite satisfactorily, that the contemplation Avas that both Brown and the company should sign the paper. The date at the head of the instrument did not conclude the inquiry, when it was signed by the company, and thereupon became the sole memorial, with the bond, of the engagements binding these parties. If the objection’s ground had been that a pure conclusion of law was invited by the question or introduced by the ansAver, a very different subject of review would have been presented.
Whether the conclusion, on' the evidence, attained by the trial court was correct depends upon the credence given the testimony of the witnesses bearing on the controlling issues of fact. The trial court heard and saw the witnesses. We are not convinced that the
Affirmed.