14 Ala. 337 | Ala. | 1848
This was an action of debt by the plaintiff in error, upon an instrument of which the following is a copy: “ Having this day sold Elam Phillips a lot on Government street for $600, and not being able at present to procure a release of dower fromC. B. Stephens’s wife, or my own, I do hereby agree to procure their release within nine months, or forfeit the amount of his note, which will be due in five years from 17th April last.” . Signed by defendant. The declaration contains two special counts upon this agreement, to each of which a demurrer was sustained. The first count, after stating the agreement, avers the note therein mentioned is for the sum of $> 120, and that the defendant failed within the nine months to procure the release of dower, as by the agreement he had stipulated. The second count is similar to the first, except that it sets out the agreement in haec verba.
It results from the construction which we have given the agreement, that the action of debt could not be sustained upon it, being a forfeiture merely of the demand which the defendant held against the plaintiff for one hundred and twenty dollars, and not an agreement to pay that sum. The demurrer to the first and second counts of the declaration was therefore properly sustained.
There is no error in the record, and the judgment is consequently affirmed.