24 Ala. 458 | Ala. | 1854
Roundtree & Baldwin, having obtained a judgment in the County Court of Madison against Salmons, for §625 43 debt, and §92 69 costs of suit, caused an execution to issue, which was levied on certain property, which was claimed by one Turner, who put in his claim under the statute.
The proof conduced to show, that, while said claim was pending, Salmons went to one Rogers, a witness, and requested him to use his influence with Roundtree, to effect a compromise of his indebtedness to Roundtree, who was then authorized to settle the demand; the witness refused to interfere, unless Salmons would agree to pay the cost of the claim suit, which was then pending for trial in the Circuit Court of Madison, which was in session; Salmons replied, that he was willing to pay the costs ; Rogers then went to Roundtree, and advised him to compromise the judgment. Thereupon Roundtree and Salmons had a settlement, but not in the presence of witness ; but both parties informed the witness, that Salmons, in satisfaction of the judgment, had agreed to give Roundtree his note for $276 33, due lst]of January, 1848, to pay $300 in cash, to pay Mrs. Milly Tate $100, and to pay all the costs of the claim suit, which was to be dismissed.
Said witness, Rogers, testified, that the claim suit was reached on the docket the next morning, when Salmons refused to pay or to confess judgment for the cost of the claim suit, and denied that he had promised so to do; that Salmons admitted to witness afterwards, that he had not paid $25 of the $300 which he had agreed to pay, and that he had never paid the $100 to Mrs. Milly Tate.
It appears, that the claim suit was not dismissed, but was tried upon its merits at a subsequent term, and there was a verdict and judgment in favor of the claimant.
There was evidence tending to show, that some payments had been made upon the judgment anterior to-the compromise, and that at that time the costs of the claim suit amounted to $124, but the final costs amounted to §246. The judgment of Roundtree & Baldwin had never been credited, anterior to the
This being substantially the proof, the defendant asked the court to charge the jury, that the plaintiff was not entitled to recover any part of the costs of the claim suit, if they believed that it was prosecuted after the compromise and settlement above alluded to. The court refused this charge as asked, and told the jury, “that if the defendant, in consideration of the plaintiff in execution entering satisfaction of the judgment, or with a view to benefit Turner, undertook to pay said costs, and when the cause was called up refused to bind himself therefor, then the plaintiff was entitled to recover the costs which had accrued up to the time he so refused.” This refusal to charge,with the qualification given by the court, is assigned for error.
The evidence conduced to show, that Salmons had agreed to pay the cost of the claim suit; but when the case was called up next, morning in court, he refused to pay it, or to confess judgment for it, and denied that he was bound to do so. We understand by this language of the bill of exceptions, that the defendant in the execution, Salmons, denied not only that he was under any obligation to confess judgment for the cost, but also denied that he was under any obligation to pay the same; in other words, that he repudiated this part of his undertaking when called on for its performance.
Now we may concede, with the counsel for the plaintiff in error,that the dismissal of the claim suit by Roundtree, and the payment of the costs thereof by Salmons, were, by the agreement as detailed by the witness, Rogers, to be cotemporaneous acts, the one dependent on the other; still, if Salmons, at the time when he was to have performed his part of the agreement, refused to do so, not because the suit was not dismissed, but on the ground that he was under no obligation or promise to pay, we think it very clear that he can take no advantage of his own wrong, and be heal’d to object that the suit was not dismissed. By his wrongful act he prevented the dismissal, and the most that he can claim is, that he should not be placed in a WOi'se condition than if the suit had then been dismissed; in other wordsj that he should pay no more of the cost than his agreement required him to pay.
We come next to consider the second charge, which was, “ that if, at the time of said settlement, there was only $350 due on said judgment, then the promise to pay more than that balance was without consideration and void, and the plain
It is supposed, finally, that the court erred in allowing a recovery for the costs which accrued during the February term of the claim suit, when it should have been dismissed. But all the proof is set out, and this does not show that any cost accrued pending the term, after it was called up and the defend
Let the judgment be affirmed.