7 Port. 41 | Ala. | 1838
— The charge of the court 'supposes that a rescission of the contract was permissible without an actual return of the deed as provided by the agreement ; and even by a loss of the deed and notice thereof to the plaintiff, previous to the first day of October, eighteen hundred and thirty-three.
For the purpose of ascertaining what was to be done by the defendant and Peters, to relieve themselves from their obligation to pay the plaintiff the sum stipulated, regard must be had to the terms of agreement. It no where declares, that a mere loss of the deed, though the plaintiff be informed thereof shall absolve them from their undertaking to pay — The court, then, in stating the law to the jury, erred in supposing the proof of these facts, should have that effect.
The parties agreed that the contract should be null and void, if the defendant and Peters returned the deed made by Gamble, (through his attorney) by the first day of October, eighteen hundred and thirty-three. In default of such return, they are to pay to the plaintiff five hundred dollars,- on, &c. Here is an alternative agreement, either to perform a certain act or pay a sum of money, and is an express covenant to do one of two. things — the
In the casé at bar, the defendant does not bring himself within the principle of the cases, which relieve from the performance of express covenants. The loss of the deed is not pretended to have been occasioned by any cause, which care and prudence could not have prevented, and we cannot well conceive how it could have been lost, otherwise than from the want of carefulness. It has, however, been urged, that as the deed could sub-serve no purpose in the hands of the plaintiff, there
But even if the charge of the court was unexceptionable, the evidence received in the court below, was clearly inadmissible. The bill of exceptions does not inform us whether the defendant’s testimony was addressed to the court or the jury, but as the fact he related was necessary (if available) to be shewn to the latter, we must infer that he gave evidence to the jury; more especially as it appears that there was no other evidence at all satisfactory to that point. The defendant did not propose to show the loss of the deed to the court, and thus lay the ground for the introduction of parol evidence of its contents. But the object of his testimony was to furnish an excuse for the neglect to return it to the plaintiff. That a party who has had the custody of a paper, may, upon first proving its existence by a disinterested witness, give testimony to the court of its loss, that secondary evidence of its contents may be let in to the jury, is well settled, at least, in this State—Bass vs Brooks, (1 Stew. R. 44.) But no authority within the range of our researches maintains the competency of a party to become a witness in his own cause, as to facts material to be shewn to the jury, either in the prosecution or de-
The result of our inquiries is, that upon each of the points presented by the bill of exceptions, the Circuit court erred.
The judgment is consequently reversed, and the cause remanded.