| Ala. | Jan 15, 1845
The rule of law invoked by the counsel for the defendant in error, to sustain the decision of the Court in the rejection of the testimony, is the familiar and well known rule, that parol testimony shall not be received to add to, vary, or explain a written agreement.
The instrument in evidence, is, a note of hand, by which the plaintiff in error promised to pay the defendant, at a given time, seven hundred dollars. The evidence offered, is, that the note was executed as an indemnity to the defendant in error, as the surety of Laroque, one of the plaintiffs in error. Now, this is certainly nothing more, than proving upon what consideration the note was given, a point we believe, upon which there is no conflict of authority, or contrariety of decision, where the instrument is not protected from such a scrutiny, by the rules of the law merchant. See the numerous decisions on this head, collected in the 3 vol. Cow. & Hill, 1458, note 976. This privilege has, by statute, been extended to sealed instruments in this State.
If, in addition to the evidence above stated, the defendants had proved, that the liability of the plaintiff as surety for La-roque was at an end, and that he was no longer in danger of being damnified, the defence would have been complete; the indemnity had performed its office, and become functus officii. This their counsel insist, was the effect of the additional testimony offered by them, and excluded by the Court. The evidence was in substance, that the plaintiff admitted, that he had not paid any thing on account of his suretyship for Laroque, and did not know whether any thing was legally due or not, upon the note on which he was bound as surety. This is certainly not an admission, that his liability as surety had ceased.
It is further insisted, that this testimony was relevant to the issue, and could not therefore, be excluded by the Court, and such is our opinion. The Court could not exclude the testimony, because unaided by other evidence, it would not maintain the issue of failure of the consideration of the note. The evidence offered being pertinent, and relevant to the maintenance of the issue joined, the Court had not the power to exclude it. If no other evidence had been offered, it would have been in the exercise of its legitimate province, in pronouncing upon its insufficiency, in its charge to the jury. See the case of Lester v. The Bank of Mobile, at the present term, where this rule is more fully expounded, and the previous decisions of this Court cited. Let the judgment be reversed, and the cause remanded.