109 Ala. 423 | Ala. | 1895
The writings— the foundation of the present action — appear to us to be certain to every intent, excluding all ambiguity or doubt as to their import and meaning. The instrument of Janruary 8th, 1894, assuming, as it recites,'that the promise rested upon a valuable consideration, bound the plaintiff to sell, transfer and deliver to the defendant, at the lat
The case is unlike that of Wailes v. Howison, 93 Ala. 375. There the delivery of tlfe options, as they were called, was a part of the option to purchase itself. The provision to pay, or return the options, within thirty days, was considered in connection with other stipulations of the contract, notably, the provision that, ‘Tithe said A. P. Howison or his assigns shall pay or cause to be paid to the said Wm. E. Wailes the sum of ton thous- and dollars, within thirty days, then all the rights which are possessed by said Wailes, by reason of said option, shall accrue no, and. said options become the property of, said A. P. Howison;” and, upon the whole, contract, its construction was that, to render it binding upon Howison,he must have made known his election to exercise the option within the designated time, .unaffected by the fact that he had possession of the options. Here, the promise to pay was made in consideration of the new and independent act of delivery of the stock to the promisor, subject to be discharged by his affirmative act of returning the stock, within the stipulated time. For further elucidation of the principles we lay down, see the authorities collected on brief of appellee’s counsel.
It is not material that the latter agreement was, in part, a receipt. As to delivery of the stock, it was a receipt. The delivery is not disputed. As to the terms and stipulations entered into by the parties, in consid
It was not a defense to the action that defendant did not assume to pay the exact sum sued for. Besides, the second pica, if good, was no more than the general issue already pleaded, and defendant was denied no defense he could hayo made under it. The demurrer to that plea was not improperly sustained.
There is no error in the record, and the judgment is affirmed.