91 So. 478 | Ala. | 1921
The questions of importance presented by the record are upon the sufficiency of pleas A, D, 5, and 6, to which demurrers were sustained, and upon the propriety of the judgment rendered for plaintiff on the issues joined.
Defendants' contention is that pleas A and D, while admitting that the note sued on bound them to repay to plaintiff the sum of $3,800 to be advanced by him to the bank for its accommodation, thereby relieving him entirely from the burden of a contribution to accommodate the bank such as defendants were making, nevertheless set up a new agreement, by the terms of which, express or implied, plaintiff undertook to pay his $3,800 note to the bank without reimbursement from defendants, upon the consideration that defendant T. L. Neighbors would advance to the bank the sum of $5,000, as proposed by Neighbors, and which was actually advanced by Neighbors upon the consideration of plaintiff's payment of his $3,800 note without indemnification.
If the allegations of the plea show the mutual obligations above stated, unquestionably the one obligation or undertaking is a sufficient consideration for the other. The sufficiency of the pleas depends, therefore, in the last analysis, upon the sufficiency of their allegations as to plaintiff's undertaking, to show a novation or substituted agreement which operated as a discharge of defendants' original obligation to reimburse him.
Looking merely to his agreement to pay his own note, it is clear that that agreement would support nothing more than a conjecture that he was to pay it without reimbursement, i. e., as his own primary obligation; and the necessary intendment would fail. But looking to all the facts and conditions shown by the pleas, the intendment becomes clearer, and the conclusion of a novation operating as a primary obligation on plaintiff to pay his note without reimbursement passes from the realm of conjecture into the realm of rational and permissible inference. It is, indeed, rather improbable that Neighbors would have made a new contribution of $5,000 to meet the necessities of the bank in order merely to induce plaintiff to do something which he was already bound to do under an obligation then existing; and the opposing inference of fact finds some support in plaintiff's accompanying statement that "they would all get their money back from the bank out of its future earnings." *598
When facts are pleaded which may support by a rational inference of fact the necessary conclusion, and that conclusion is expressly alleged, the plea will be deemed sufficient as against demurrer. West v. Spratling,
We hold that the pleas in question were not subject to any of the grounds of demurrer assigned, and should have been entertained by the court, though the ultimate conclusion on the trial of the issue may have been adverse to the pleaded conclusion.
Pleas 5 and 6 are, we think, clearly bad. If their intent is to set up a conditional delivery of the note — and plea 6 could intend nothing else, and they are both thus considered by appellants' counsel — plea 5 wholly fails to show such a condition, and plea 6 wholly fails to show any breach of it.
On the other hand, if the intent of plea 5 is to inject into the contract a condition precedent to defendants' liability on the note, it is fatally defective in not showing that such a condition was agreed to by the plaintiff, the payee in the note, it not being shown that M. M. Epps, who was a joint maker, and who made the promise that the bank would secure the advancement by giving a mortgage security to plaintiff, was the agent of plaintiff in securing the note.
These defects are pointed out by apt grounds of demurrer, and the demurrer to each was properly sustained.
We deem it unnecessary to consider whether plea 4 was supported by the evidence in such wise as to require a judgment for defendant on the issue it presented, as the judgment must be reversed and another trial had, on the issue presented by pleas A and D.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.
