19 Ala. 117 | Ala. | 1851
The objection to the recovery in this case is, that the consideration of the note sued upon had partially
It is contended by the counsel for the plaintiff, that the failure of Hunt to carry the gin to Dubois’ shop discharged Mather
I will not say, however, that a parol executory agreement can in no case be considered as a waiver- or a discharge of a written contract; but if such executory agreement be founded on no new consideration, and has been productive of no injury to the party who was to perform it, I cannot see how it is to discharge him from the performance of an absolute and perfect obligation. Mather, the payee of the note, was absolutely and unconditionally bound to repair the gin, before Hunt agreed to carry it to the shop of Dubois ; and Hunt’s failure to do so, (his promise being founded on no new consideration) cannot release Mather from the performance of his part of the original contract. Mather therefore has not fully complied with the agreement which formed the consideration of the note, and consequently, there has been a partial failure of consideration, and the plaintiff can only recover the amount of the note with interest thereon, less .the sum that it would have cost to put up the gin in good repair at the time it was first started. This being, in our opinion, the rule that must govern the amount of the recovery,it follows that the court erred in the instructions given to the jury, and the judgment must be reversed, and the cause remanded.