O'Barr v. Turner

Apr 3, 1917
7 Div. 407.
Versions:75 So. 271
16 Ala. App. 65
1917 Ala. App. LEXIS 128
BROWN,'J.

[1] From the foregoing statement of facts taken from the record, it is clear that in each instance money was advanced by the claimant to the defendant; the defendant gave his note payable to the claimant for the amount advanced, containing a clause usual in notes where collaterals are pledged, referring to and describing the assignment in question, which was in each instance attached to the note when it was executed and delivered. In other words, each loan constituted a separate and distinct transaction, in which the note and assignment constituted the contract between the parties, under the well-established rule of law that where two or more written instruments are made a part of one transaction, they will be read and each will be construed with reference to the other. Kelly v. Life Ins. Clearing Co., 113 Ala. 463, 21 South. 361; Pierce v. Tidwell, 81 Ala. 299, 2 South. 15; Robbins v. Webb, 68 Ala. 393; Prater v. Darby, 24 Ala. 496; Holman v. Crane, 16 Ala. 570; Sewell v. Henry, 9 Ala. 24; Whitehurst v. Boyd, 8 Ala. 375; Byrne v. Marshall, 44 Ala. 355; 6 Cyc. 580 (VIII, B. 6).

[2] The transaction between the claimant and the defendant being a mere loan Of money, a pledge of collateral to secure the payment of the loan, in each instance as the several notes were paid the incumbrance on the thing pledged was removed, and the defendant was entitled to have it restored to his possession without demand therefor (Geron v. Geron, 15 Ala. 558, 50 Am. Dec. 143; Overstreet v. Nunn, 36 Ala. 649; Hancock v. Franklin Iron Co., 114 Mass. 155; 31 Cyc. 849-853); and hence was at liberty to repledge it.

[3-5] The purpose of the statute of frauds is to prevent frauds and perjury; and, while parol evidence is not admissible to take an agreement out of the statute of frauds, where the contract expressing the true intention of the parties may be gathered from contemporaneous writings or writings acquired by the holder in the same transaction, although not contemporaneously executed, the writings will be considered and construed together to save the contract from condemnation as fraudulent. Kyle v. Jordan, 187 Ala. 360, 65 South. 522; Oliver v. Alabama Gold Life Ins. Co., 82 Ala. 417, 2 South. 445; Forst et al. v. Leonard et al., 112 Ala. 296, 20 South. 587. For the reason above stated, the notes were admissible, and when the contract of the parties as gathered from the two writings — the note and the assignment referred to in the note and attached to it — is considered, it is evident that the assignment is not within the statute of frauds. Oliver v. Alabama Gold Life Ins. Co., supra.

[6] The transfer not being void under the statute of frauds, but valid, passing to the claimant the chose in action of the judgment defendant against the garnishee as collateral surety for its claim against the defendant, the plaintiff cannot subject the debt in question to his judgment until the claim of the bank is paid in full, not becafise a holding otherwise would impinge the rule against splitting causes of action, but because the plaintiff, under his garnishmeht, has no greater right to recover this money than has the defendant. Norwood & Co. v. Voorhees, Miller & Co., 129 Ala. 314, 29 South. 680; Henderson v. Ala. Gold Life Ins. Co., 72 Ala. 32; Coleman v. Hatcher, 77 Ala. 217.

The judgment defendant only has an equity in the chose transferred as collateral which he cannot assert until the debt due the bank secured by the collateral is paid.

[7] The rule against splitting up a single, indivisible cause of action is the offspring of two legal maxims: “It concerns the state that there be an end to lawsuits” (“Interest repúblicas sit finis litium”); and, “No man *68 ought to be twice troubled or harassed (if it appear to the court that he is), for one and the same cause” (“Nemo debet bis vexari [si constet curiee quod set] pro una et eadem causa”). U. S. v. Throckmorton, 98 U. S. 65, 25 L. Ed. 93; 1 Eng. Enc. Pl. & Pr. 148, 149; Black’s Law Dictionary; 23 Cyc. 436. This rule is only applicable when the holder of the cause of action undertakes to sustain more than one suit by it, or assigns to another a part only of such entire cause of action, holding the remainder, and such assignee undertakes to maintain an action thereon without the consent of the party liable.

The case of K. C., M. & B. R. R. Co. v. Robertson, 109 Ala. 296, 19 South. 432, was in the latter class, and the following cases in the former: Lock v. Miller, 3 Stew. & P. 14; Oliver v. Holt, 11 Ala. 574, 46 Am. Dec. 228; De Sylva v. Henry, 3 Port. 132; S. & N. A. R. R. Co. v. Henlein & Barr, 56 Ala. 368; Liddell v. Chidester, 84 Ala. 508, 4 South. 426, 5 Am. St. Rep. 387; Wharton v. King, 69 Ala. 365.

The rule, in so far as it is for the protection of the state, is embodied in the doctrine of res adjudicata, as will appear from its application in the cases cited above, and the person liable can only assert the doctrine when sued the second time on the same cause of action by the holder, or when he has not given his assent to the assignment of a part of the cause of action and is sued by the assignee.

An analysis of the foregoing authorities in the light of the reason and purpose of the rule in question demonstrates beyond question that the holding of the majority on the former appeal (12 Ala. App. 546, 67 South. 794) is unsound, and is overruled.

What we have said necessitates an affirmance of the judgment of the trial court.

Affirmed.