6 Ala. 746 | Ala. | 1844
1. The sufficiency of the several Special counts of this declaration will be best examined after ascertaining the legal effect of the indorsement made by the defendant in the W2'iting obligatory of Likens, but which is set out in haec verba in one or more of the special counts. In Granniss & Co. v. Miller, [1 Ala. Rep. N. S. 471,] we held that the words, “1 assign and guaranty the payment of this note, waiving demand and notice,” was not an absolute and uncondi
2. It is said, however, that this indorsement does not specify the person who is contracted with, and that, as the contract itself is not negotiable, a direct averment is necessary to show it to have b'een made with the plaintiff. However the law may be
3. Another objection has been urged, that this is not of that class of writings which import a consideration; and, therefore, it is insisted, a consideration must be shown in the declaration, inasmuch as the promise is to pay the debt of another. The decision in Click v. McAfee, [7 Porter 62,] is a full answer to^this objection in all its aspects. -
We are warranted, then, in stating the legal effect and prima facie intendment of this indorsement by Bradford to be a promise to the plaintiff to pay him the amount of the writing obligatory previously executed by Likens, in the event that he should prove unable to pay after using due dilligence to collect it from him in the first instance, or in the other event of his inability to pay by reason of insolvency.
4. All, then, which is necessary to be stated in a count upon this guaranty, is, that the writing obligatory was made by Likens setting that out according to its terms; that the guaranty was made according to its terms, or according to its legal effect; the failure by Likens to.pay; and the facts from which due dilli-gence is to be inferred, or his insolvency, which renders any dil-ligence unnecessary. These, with a sufficient breach, it is believed, would constitute a sufficient declaration, as proof of the same facts would authorize a recovery. [Adams v. McMillan, 8 Port. 445.] The first and last counts contain all these allegations and averments; and, therefore, we consider them as substantially good, though both are somewhat inartificially worded.
5. The other two special counts are, in form and substance, counts upon a promise to pay the note in consideration of forbearance; and no other objection is taken against them than the omission to insert the precise day to which forbearance was agreed to be given. If a day certain was inserted wherever the blank space occurs, it would be competent for the plaintiff to prove a day different from the allegation. Such a defect is matter of form, and not of substance, and cannot now be reached by demurrer. [Estill v. Shelly, 2 Porter, 185.]
It is unnecessary to swell this opinion by considering the question raised by the bill of exceptions; as what has already been
Judgment reversed, and remanded.