Oldacre v. StuartOldacre v. Stuart
- Reporters:
- Before:
- Haralson
— Suit by аppellee, plaintiff below, against appellant, tlie defendant, on a promissоry note for $823.79, dated lOtli October, 1893, payable ten days after date. It was tried by and before tlie presiding judge, a jury having been waived, resulting in a finding and judgment in favor of the plaintiff.
There Avas no cоnflict in the evidence between the plaintiff and tlm defendant on the main question at issue. The сontract out of which the note greAV Avas, that the plaintiff, avIio lived at Decatur, Alabama, should furnish, Avliich he did, fifteen hundred dollars’ Avorth of goods to defendant, which he Avas to sell at Milton’s Bluff in LaAvrence county. The defendant Avas to bear all the expense of the business, including house rеnt, Avas to sell the goods and receive one-lialf of the profits for his services. About two months,after the goods Avere sent by plaintiff to defendant and placed in store at the plаce at Avliicli they were to be sold, the storehouse and the goods were destroyed by firе, without any fault or neglect, so far as is made to appear, on the part of the dеfendant. Defendant had sold some of the goods, and a feAV days before the fire, he sent plaintiff $100 of the proceeds of their sale. The defendant testified that the goods belongеd to the plaintiff, and he had no interest in them, and got one-lialf of the profits for his services; аnd the plaintiff testified to nothing in conflict Avith this statement. He also testified, that a feAV days after the goods were destroyed, he agreed to pay the plaintiff one-half the value of the same, and gave him a paper writing to that effect.
The plaintiff testified, that this papеr, Avhich he called the first note, was payable in three instalments, the first for $200 payable in February, 1895, the second for same amount, payable in April folloAving, and the balance AAdienever it Avas possible for defendant to pay it; that he became anxious to get a neAV note, because tlie statute of limitations Avas about to run on the first obligation, *408and lie presentеd to defendant the new note, — the one sued on, — and asked him to sign it, which he did; that there was nothing sаid about the first or old note, when the new one Aims given, and that he merely presented the new one and asked him to sign it, and he did so. The defendant, as to this, testified that after he had executеd the note in suit, the plaintiff either gave or sent him the first note or paper writing he had executed, and he destroyed it. As to the giving of the first note or obligation, the plaintiff testified: “When the goоds were burned, Oldacre came up after the fire and agreed to pay me for one-lialf the value of the goods. It was his oavu voluntary act. I did not require it of him. He gave me his notе for $713.10. He said.he thought that Avould be right. This was October 21st, 1881, and the goods Avere burned the 19th October, 1881.” He аlso proved that defendant, before he gave the last note, had paid plaintiff, from оne time to another, $200 on the old one.
The plaintiff also introduced, against the objection of defendant, a number of letters Avritten by him to plaintiff in Avliich he’ recognized his obligation to рay and his desire and promises to do so, as soon as he could.
From the foregoing it will- appear that the defendant’s reneAved obligation stands, as for the consideration for its making, on precisely the same consideration, no more and no less, as that which suppоrted the first obligation. If the first was Avanting in consideration, so Avas the latter (Stark v. Henderson 30 Ala. 438; Russell v. Wright, 98 Ala. 652) ; and the making of repеated promises to pay, does not prevent the maker from insisting that there AAas no cоnsideration for the note, unless a neAV consideration had inteiwened, which Avas not the case in this instance. — Ware v. Morgan, 67 Ala. 461. There had been no dispute between the parties, as to the ownership of the goods furnished by plaintiff and destroyed by fire, nor as to the contract that existed betAveen them undеr which they Avere furnished to and received by defendant, nor as to any obligation of‘defendant to plaintiff arising out of any alleged fault or neglect of defendant out of which their destruction might have originated, nor was the note sued on, the outgrowth of *409any compromise touching any of these matters; but, as plaintiff himself testified, the giving of the note was defendant’s own voluntary аct, and that he, the plaintiff, did not require it of him. It had no value or-meritorious consideration tо support it. The defendant was under no legal or even moral obligation to give it. Its giving was merely gratuitous on his part. A promise based on such a consideration is not recognized and can not be enforced in a court of law or equity. — Maull v. Vaughn 45 Ala. 134; Hubbard v. Allen, 59 Ala. 283; Head v. Baldwin, 83 Ala. 132; Ezzell v. King, 93 Ala. 470; Russell v. Wright, 98 Ala. supra.
The judgment of the court below is reversed, and one will be here rendered in favor of the defendant.
Ileversed and rendered.