Johnson's Adm'r v. Sellers' Adm'r, 33 Ala. 265

33 Ala. 265 | Ala. | 1858

WALKER, J.—

The counsel for the appellant only contends, that the first, fourth, ninth, and tenth charges given, are erroneous ; and we will, therefore, confine our attention to them. Upon the first charge it is not necessary that we should pass, as the question made upon it will not probably again arise.

The court erred in giving the 4th charge. The contracting parties are not bound beyond the stipulations of' the contract. One of the parties is not bound to perform an act, not within the stipulations of the contract, because it was understood by the other party that he would perform it, and he knew of that understanding. The effect of the charge was, to hold Johnson bound to bring Ms wife with him, although he did not contract to do so, because it was known to him that the trustees understood that he was to bring her with him to teach in the school. In the giving of that charge the court erred.—Sanford v. Howard, 29 Ala. 684.

[2.] The 9th and 10th charges assert the proposition, that if Johnson contracted to bring and associate bis wife-with him in teaching the school, and then refused to comply with that contract, a promise by Sellers to give him $2,500, in order to induce him to comply, would be without consideration. In our judgment, these charges are correct. Johnson, by his contract, was legally bound to bring his wife to teach school, if the contract was no right to viohno lured party in dain¡prpc&c U> i-n-Mpt'l commit a trespass, for which the law would merely give an action to recover damages ; but it does not therefore follow, that he had a right to commit the trespass, being responsible for the damages, or that a promise made to induce him either to commit or not to commit it, would be valid. Renfro v. Heard, 14 Ala. 23.

If two parties make a contract, one of them may waive i the performance of the contract by the other, and assume some new and additional obligation as the consideration of the performance by the other. Such obligation would be binding. Within this principle fall the cases of Stoudenmeier v. Williamson, 29 Ala. 558; Munroe v. Perkins, 9 Pick. 298; .and Lattimore v. Hanson, 14 Johns. 330; also, Spangler v. Springer, 22 Penn. St. R. 454; Whiteside v. Jennings, 19 Ala. 784; Thomason v. Dill, 30 Ala. 444. Those cases rest upon the ground,, that it is competent for the parties to -a contract to modify or rescind it, - or to waive their rights growing out of it as originally made, and engraft upon it new terms. (Here, while there is a subsisting contract with the trustees, and a subsisting obligation to perform it, the proposition of the appellant is, that a promise by a third party to induce its performance, or rather to prevent its breach, was supported by a-valid consideration. /We do not think the law so regardsJ such a promise.

We deem it proper to remark, that the testimony found in the bill of exceptions does not conclusively show whether Johnson’s contract was to bring his wife to teach in the school with him; and that that question of fact should be left to the determination of the jury upon the evidence. The court could not assume that the resolution for the election of Johnson as principal on the 17th August, 1850, contains all the terms of the contract. The question, what was the contract, must bo left to the decision of the jury, upon that and the other evidence in the case.

The judgment of the court below is reversed, and the cause is remanded. . ■