Garner v. Fite, Porter, Lyles & Co., 93 Ala. 405

Garner v. Fite, Porter, Lyles & Co.

93 Ala. 405 | Ala. | 1890

WALKER, J.

— The substance of the matters set forth in the special plea is, that, by the written agreement entered into .some time prior to the execution of the notes sued on, plain*407tiffs and other creditors promised to grant extensions on their claims if all.the creditors would do the same, and if the defendant with his wife would execute their joint notes, waiving exemptions, to the several creditors for the debts due them; that all the creditors did not agree to this arrangement; that, notwithstanding this, defendant with his wife executed and delivered the notes sued on, subject to the terms and conditions mentioned in said agreement. The plea does not allege the execution of any agreement indicating the imposition of conditions upon the operation of the notes other than that a copy of which is made Exhibit A, and which is the agreement above referred tp. It is not averred that the notes themselves contained 'any stipulation that they were to take effect only upon compliance with certain conditions. If the notes were conditional obligations, they would not correspond with the description thereof in the complaint. The plaintiffs sued on unconditional promises to pay. As no issue was made as to the description in the complaint of the notes sued on, it is to be taken as admitted that the alleged conditions were not expressed therein.

Of course, the defendant and the plaintiffs could waive the conditions upon which, by the terms of said original agreement, the notes were to be executed and accepted. So far as the conditions were of benefit to plaintiffs, they were waived by acceptance of the notes, evidencing an extension, without requiring that the other creditors join in the scheme of extension. The advantage to be secured to the defendant by the carrying out of the agreement was the postponement of the time of payment of all his debts. His waiver of this condition in his favor was shown by the delivery of, the notes to the plaintiffs, without requiring that the other creditors agree to the proposed extension. So far as the conditions were concerned, the contract was practically abandoned on both sides. The requirements thereof were not insisted upon by either party., Notwithstanding the averment in the plea of a contrary conclusion, the acts of the parties as alleged by the pleader can not be reconciled with' the claim that there was an insistence upon the terms of the agreement. The execution and acceptance of the notes, in the circumstances alleged, necessarily involved a waiver of the conditions precedent expressed in the agreement. No conditions subsequent were mentioned therein. As there was no averment of the execution of any other agreement, the plea can not be construed as stating anything more than the existence of an understanding that the notes in the hands of the plaintiff should be subject to a condition subsequent of like import as the *408condition precedent provided for by the original agreement. In other words, the contention is, that the agreement governed a transaction wholly different from that contemplated by its terms. The defendant, by his plea, proposed in effect to show, by mere reference to an agreement which called for nothing oí the kind, that the notes were delivered to the plaintiffs in escrow. This could not be shown. It is not competent to prove that a bill or- a note was delivered to the promisee as an escrow, for the evidence would be repugnant to the act. — Massman v. Holscher, 49 Mo. 87; Jones v. Shaw, 67 Mo. 667; Badcock v. Steadman, 1 Root (Conn.) 87; Hargrave v. Melbourne, 86 Ala. 270; 1 Daniel on Negotiable Instruments, § 68; 2 Amer. & Eng. Éncyc. of Law, 343. As the notes themselves expressed no conditions limiting their operation, they were legally incapable of explanation, contradiction or modification, by parol' evidence. — Day v. Thompson, 65 Ala. 269. And as the plea did not allege the execution of any agreement other than the original one above referred to, it was incompetent to prove by parol the existence of an understanding that the terms thereof should apply to acts performed in disregard of all of the conditions expressed therein, to the end that the notes be treated as having been delivered in escrow. — Dexter v. Ohlander, 89 Ala. 262. The plea amounting to no more than a proposition to make such proof, the 7th ground of demurrer was properly sustained.

Affirmed.