96 Ala. 454 | Ala. | 1892
We will notice only such rulings of the Circuit Court on the plaintiff’s demurrers to the defendant’s pleas as are claimed in the argument for the appellant to have been erroneous. Without reviewing the grounds of demurrer in detail, the following statement in reference to the several pleas which are noticed in the argument will be sufficient: *(1.) The agreement relied on in the second plea was to the effect, that in the event of a sale of the land therein mentioned for unpaid purchase-money, the plaintiff would furnish the money to buy it in. It is not averred that the plaintiff agreed to buy in' the land himself, or that he was to proffer or tender the money to any one else for that purpose, without a previous demand upon him. The aver-ments do not show that any obligation in that regard was assumed by the plaintiff in the absence of a request for the money required to buy in the land. The plea fails to show a breach of the agreement by the plaintiff, as it does not allege that any demand was made on him to furnish the money. (2.) The third plea is defective in the same particular. It is not alleged that any demand was made upon the plaintiff to furnish the money according to the terms of his agreement. (3.) The allegations of the fourth plea do not show that any agreement or undertaking by the plaintiff to deliver the cotton-press entered into the consideration for the note sued on. This plea does not connect the plaintiff with the duty to deliver the cotton-press to the defendant, and does not allege that it was sold by the plaintiff to the
The part of the second plea as amended which was stricken out was merely an averment as to the defendant’s undisclosed conclusions and intentions. The thoughts in his mind, not suggested by any conduct or statement of the plaintiff, could not be an element of the defense set up by the plea. There was no error in striking out such averment.
The note sued on was given under the following circumstances : One Shields owned a gin and mill situated upon a tract of land on which there was a vendor’s lien for unpaid purchase-money, and upon which there was also a mortgage which was owned by the plaintiff, who is the appellee here. The appellant, under an arrangement between himself, Shields, and the appellee, purchased from Shields a half interest in the property. The following written agreement on the subject was entered into and signed by the three parties: “George Maness has bought from D. H. Shields one-half interest in the mill and gin of D. H. Shields, and I have a mortgage on the gin and mill, and it is agreed that George Maness pay to A. G. Henry the sum of two hundred and twenty-five dollars, and Maness has executed his note to A. G. Henry for that amount, and when this sum of two hundred and twenty-five dollars is paid by Maness to Henry, it is agreed that the half part that Maness buys from Shields is to be released from Henry’s mortgage, and Shields is to secure A. G. Henry by a mortgage or other security for the debt that Shields yet owes Henry on this property.” The note sued on is the one mentioned in the foregoing agreement. On the motion of the plaintiff, the court excluded parol evidence offered by the defendant to show that on the day the written agreement was signed, and as a part of the transaction between the defendant, the plaintiff, and Shields, the plaintiff agreed that, in the event of a sale of the land to satisfy the vendor’s lien, he would furnish the money to buy in the land, and that he had failed and refused to comply with this agreement. This evidence was properly excluded.
The defendant’s claim that the plaintiff agreed to release him from liability on the note rests on his testimony to the effect that when he stated to Henry, sometime after the note was made, that he wanted to be released from the debt, the latter replied that he considered him already out, and did not hold him responsible any longer. It is true that a contract in writing, whether under seal or not, executory m all its terms, involving mutual duties, may, by a subsequent parol agreement, be modified, altered or rescinded; and the mutual assent of the parties is a sufficient consideration to support their agreement to this effect. — Robinson v. Bullock, 66 Ala. 584. But a mere verbal waiver by one party, unsupported by any consideration moving from the other, will not bar the former’s rights. Such a one-sided agreement, being supported by no consideration at all, can not avail to- discharge the obligation imposed upon the other party by the contract. — 3 Am. & Eng. Encyc. of Law, 889. In the present case there was no proof of a. valuable consideration to support the alleged waiver by the plaintiff. His statements to the witnesses Shields and Robinson, respectively, to the effect that he did not consider Maness in the matter, and that he did not hold Maness responsible, did not tend to show the existence of a valid agreement on his part to discharge Maness from liability on the note.
The evidence disclosed no defense to the note, and the plaintiff was entitled to a recovery thereon. The writing in pencil on the note was manifestly a mere memorandum, and could not be mistaken for an attempted alteration. It may be conceded that the endorsement on the mort
Affirmed.