9 Ala. 527 | Ala. | 1846
1. This plea is clearly bad, within the case of Deshler v. Hodges, 3 Ala. Rep. 509, where we say, if a plea profess to answer more than it afterwards answers, the whole plea is bad, and the plaintiff may demur. Here the plea is to the entire action, and yet only answers one count.
2. But it is bad for auother reason, if we are to consider it as setting up the final agreement not to sue, made with High & Travis, when the defendant executed the bill single. The rule is, that contracts under seal cannot be modified or discharged by unexecuted parol agreements, whether made at the same or at a subsequent time. [McNair v. Cooper, 4 Ala. Rep. 660: Barelli v. O’Conner, 6 Ib. 617.] In either aspect of this plea, the demurrer was properly sustained.
It is not impossible the pleader intended to bring the case within the principles settled in Rhodes v. T. & C. Co., 8 Ala. 206, in consequence of the insolvency of High & Travis. It may be remarked in this connection, that the case cited was a suit in equity, and the defence was asserted after the payment of the secured debts.
Let the judgment be affirmed.
