44 So. 617 | Ala. | 1907
This is an action upon a contract whereby the appellant, with certain other creditors of Wohl Bros., guaranteed the past-due indebtedness of the said Wohl Bros, to the First National Bank of Gadsden, the plaintiff and appellee in this case, and also
The third and seventh counts of the complaint to which there were demurrers, are the only counts forming a basis of an assignment of error. Each of these counts claims of the defendant the sum of |500, the amount he agreed to guarantee in and by the contract above mentioned, under and by virtue of said agreement which is set out in full in said counts. The third count then avers a compliance on the part of the complainant Avith all of the terms and conditions of said agreement, and each of said counts further avers that on the 1st day of January, 1906, the firm of Wohl Bros. AAras indebted to the plaintiff in the sum of, to-wit, $8,000, which at that time Avas due and unpaid. The complaint also avers a request upon the defendant to pay the said sum, and his failure and refusal to do so.
The demurrers directed to these counts g're leased largely upon the idea that the contract or agreement set forth in baec verba in said counts, constitutes a conditional contract of guaranty. If such were the case, the complaint Avould not be sufficient, at least, unless made so by some Code form. — Nesbit v. Bradford, 6 Ala. 746; Adams v. McMillan, 8 Port. 445.
We do not think, hoAvever, that this construction of the contract is correct, but on the contrary, it is clear ( bat the contract is what is called an absolute guaranty, avhereby' the guarantor is bound immediately upon the failure of his principal to perform the contract, without any further steps being taken by any one, or Avithout
It is also objected to the third count, by Avay of demurrer, that it does, not shoAV that there was any consideration for the contract sued upon. In this case, the contract purports on its face to have been made for a valuable consideration, as Avill hereafter appear, and the sanie being set out in full in said count constitutes a sufficient averment of consideration. — 9 Cyc. 718, and authorities cited.
The complaint, then, setting out the contract in full, alleging the existence of a certain indebtedness which was due and’ unpaid on the 1st day of January, 1906, and averring a request upon the defendant to pay according io bis promise, and bis failure to do so, sufficiently aA crs the existence of a valid contract and a breach 1 hereof by the defendant. — Foy v. Dawkins, 138 Ala. 232, 35 South. 41.
Tbe defendant filed a number of special pleas from 3 to 9 inclusive to each of which tbe demurrers of tbe plaintiff Avere sustained. Tbe third plea alleges in substance, that tbe contract sued on was signed upon tbe
It is suggested by counsel for defendant that there is nothing in the plea to show that the agreement therein sought to be set forth was not in writing, and that the plea should have been allowed to stand until the proof showed that such agreement undertook to vary the terms of the written contract. This contention overlooks the fact, that all pleading must be construed most strongly against the pleader, and so construing it, it must be held that such agreement was verbally entered into prior to the execution of the contract, but was not carried forward into the final memorial executed by the parties. Besides, the plea avers that at the time the contract was signed, it was thereupon agreed, and this shows upon its face, that it is an attempt to violate the rule that all agreements occurring at the time of or prior to the execution of a contract, are merged in the written instrument.
Plea 4 alleges in substance that a part of the consideration of the contract sued upon was that plaintiff agreed to extend a further credit of |4,000 to Wohl Bros., -which plaintiff failed to do. This plea was not subject to the demurrer interposed to it. It did not seek to vary the terms of the written contract, but properly set up a failure of consideration as expressed in the contract sued on.
We think the contract sued on in this case is abundantly supported by a sufficient consideration. An agreement to forbear the institution of a suit, or any other means, for the collection of a debt is a sufficient consideration of itself to support a promise on the part of another to pay such debt. — Martin v. Black, 20 Ala. 309; s. c. 21 Ala. 729.
It is no objection to the validity of such promise that no particular time is specified for forbearance,since the law presumes that it will be for a reasonable time. —9 Cyc. 344.
Besides, the guaranty of the payment of a debt on a stated day in consideration of a forbearance by the creditor is construed as meaning a forbearance until the date of payment. — 9 Cyc. 344, and authorities cited.
But besides this, plaintiff in this case promised to make additional advances to the principal debtor, which is also a sufficient consideration to support the promise of payment by the guarantor.
Assignments of error Nos. ] 0 to 15 inclusive relate to questions propounded to the witness Davidson as to the time when plaintiff agreed to extend the debt of Wohl Bros., and as to whether or not anything was said about any such extension, and are all matters that became merged in the written instrument, and which could not be varied by parol testimony. Authorities cited above.
Defendant objected to the introduction of the written contract on the ground, solely, that its execution had not been sufficiently proven. There appear to be no subscribing witnesses to the contract, and the witnesses Davidson, Boykin and Brindley all testify that they were present at the execution of the contract,- and saw
The question propounded to the witness, Sullivan, had a tendency to vary the terms of the written contract in accordance with the averments of plea No. 3, which, as above shown, cannot be done.
The assignment of error based upon the proposition that the plaintiff could recover only such • proportion as the sum of $500 bore to the total liability guaranteed is not well taken. The contract is absolute. It in express terms fixes a liability for a specified amount against the plaintiff in the event Wohl Bros, failed to pay their indebtedness to the bank.
Guarantors may bind themselves in different amounts for the same debt. As long as the debt guaranteed remains unpaid, each guarantor is liable to the extent of his promise, at least, for the unpaid balance.
This disposes of all the questions raised by the record, and for the error indicated, the judgment must be reversed and the cause remanded.
Reversed and remanded.