Thompson Foundry & Machine Co. v. Glass

136 Ala. 648 | Ala. | 1902

TYSON, -T.

This action was brought to enforce the collection of a number of promissory notes alleged to have been executed by the defendants for instalments of rent for the property described in the complaint. The defendants interposed special pleas of set-off alleging that prior to the execution of the notes and as an inducement to the rental of said property and the execution of said notes, the plaintiff, promised and agreed with defendants that he would repair the roof of the foundry building located on said property, which was then in a very leaky condition, so that it would not leak; that relying on said promise and agreement, defendants rented said premises and executed said notes and went into possession of said property and occupied it for the purposes for which it was rented, and that the plaintiff breached his promise to make the repairs, etc. To these pleas three special replications were filed, numbered 2, 3 and 4. The substance of the allegations of these replications may be stated to be that the notes sued upon were rent notes executed contemporaneously with a lease in writing, which contract of lease was mutuálly executed by the parties to this suit, and that it contained no stipulation or promise on the part of the plaintiff to make the repairs. T'o each of these replications a demurrer was interposed on the ground that the pleas shoAvecl that the set-off claimed did not arise from any alleged breach of the condition of the lease, but from the breach of an entirely separate and distinct agreement entered into prior to the execution of the lease and notes.

On the trial, the plaintiff introduced in evidence the lease which purports to be executed by all the parties and bears date corresponding to the date of the notes. This lease contains no promise or obligation on the part of the plaintiff to make the repairs. The defendants offered to show that an oral promise was made by plaintiff as alleged in the pleas and a non-fulfillment of that promise. On objection, they were not allowed to do so, to which an excex>tion was reserved. Thus, we see, the question raised, both by the demurrer and the exception reserved to the ruling of the court upon the exclusion of the evidence in support of the pleas, is whether the promise alleged in them was a separate and distinct one and, therefore, in nowise contradicts, varies or materially affects the lease either in terms or legal effect.

It is not contended by appellants, that if the promise was merged in the written lease, that parol evidence is admissible to prove it. But the contention is that it is altogether independent of and collateral to the lease. This direct question has not been decided by this court, but it has frequently been passed upon by other courts. It is true there.is á divergence of opinion upon it. Of those holding the views contended for by appellants, may be cited: Erskine v. Adeane, 8 Ch. App. 756; Mann v. Nunn, 43 Law J. C. P. 241; Cleningham v. McFarland, 11 N. Y. Sup. 719; Chapin v. Dobson, 78 N. Y. 81. A contrary view is held in the following cases: Brigham v. Rogers, 17 Mass. 571; Eberle v. Girard Life Ins. Co., 4 Atlantic Rep. 808; Wodock v. Robinson, 148 Pa. St. 503; Cleaves v. Willoughby, 7 Hill (N. Y.), 83; Wilson v. Deen, 74 N. Y. 531; McLean v. Nichol, 43 Minn. 169; Tracy v. The Union Iron Works, 104 Mo. 193; Diven v. Johnson, 117 Ind. 512; Stoddard v. Nelson, 17 Oregon, 417; Howard v. Thomas, 12 Ohio St. 201; Naumberg v. Young, 44 N. J. L. 331. In the two cases last cited will be found able and lengthy discussions of- the question. The New Jersey court reviews the English cases cited above sustaining appellant’s contention and shows the utter fallacy of the doctrine announced in them. After careful consideration of the cases on both sides of the question, we are clearly of the opinion that the weight of authority as well as reason supports the view that the promise relied upon by the defendants was not independent and collateral to the lease, but was a part of the bargain to rent the property, and to allow proof of it would violate the salutary rule excluding parol evidence to. alter or add to a written agreement. As indirectly supporting tins conclusion, see Seitz v. Brewer, 141 U. S. 510; Town of Brewton v. Glass, 116 Ala. 629; Wurtzburger v. The Anniston Mills, 94 Ala. 640, and cases there cited. The cases of Vandegrift v. Abbott (75 Ala. 487), Powell v. Thompson, (80 Ala. 51), and Murphy v. Farley, (124 Ala. 279), are entirely in accord with the conclusion reached. In those cases, there was no written contract of lease, as tiere, executed by the lessor and lessee.

The objection taken to the introduction in evidence of the lease because its execution ivas not proven should have been sustained. Against the availability of this objection, the insistence by appellee is, that as the notes sued'upon and the lease were executed with reference to each other and intended by the parties as one and the same transaction, they must be construed as one instrument. And further, the lease having been alleged by the new assignment contained in the replications, the replications must be regarded as a new complaint and entitles both the lease and the notes to be introduced in evidence without proof of their execution. In other words, the replications were nothing more than a new assignment more fully of the cause of action stated in the complaint, rendered necessary by the special pleas and, therefore, the lease as well as the notes were the foundation of the suit. To this we cannot agree. If it be true as contended that the replications were merely a new assignment of the cause of action stated in the complaint, they were not a part and parcel of the complaint. It. is not the office of a replication to serve as amendment to the complaint. Nor could they be answered by a plea to the complaint, and proof of the facts alleged in the complaint would not have proven the replications. We, therefore, feel constrained to hold that the lease, being averred in the replication, was not the foundation of the suit and that proof of its execution should have been made, unless it was admitted. This, it is insisted, the record shows was done. It discloses that, after the lease had been admitted in evidence' against the objection of each of the defendants, and after they had offered Mrs. Thompson as a witness, propounding to her certain questions for the purpose of proving the defenses invoked by the pleas, which were objected to and the objection sustained, their counsel made a statement to the court of what they expected to prove by her. In that statement the following language was used: “They [we] expect to prove that several weeks prior to the execution of this lease Mr. Glass insisted upon Mrs. Thompson signing this lease along with her husband/’ etc., etc. Was this an admission, under the circumstances, of the execution of the lease by defendants? The rule laid down in 1 Greenleaf, section 186, is: “The admissions of attorneys of record bind their clients, in all matters relating to the progress and trial of the cause; but to this end, they must be distinct and formal or such as are termed solemn admissions, made for the express purpose of alleviating the stringency of some rule of practice or of dispensing with the formal proof of some fact at. the trial.” Applying this rule, which we think is the correct one, we are of the opinion that, there is nothing' in the statement, relied upon as an admission, wlien construed in connection with the circumstances under which it was made, indicating that it was the intention of defendants’ counsel to relieve the plaintiff of the burden of proving the execution of the lease or to make an admission to obviate that necessity. See also Lake Erie & W. R. R. Co. v. Rooker, 13 Ind. App. 600; Wright v. Young, 1 Camp. 139. It is true the record shows that Mrs. Thompson, one of the defendants, admitted that she signed the lease, but this did not prove its execution by the other parties to it, which, of course, was incumbent upon the plain-tW to do.

Objection was also taken to the introduction of the notes on the ground of a variance. This is predicated upon the proposition that the suit is against “Julius Thompson and Willie May Thompson doing business as Thompson Foundry and Machine Works,” while the notes introduced in evidence are signed “Thompson F. & M. Wks. Julius Thompson.” The complaint does not attempt to set out the notes -in haec verba, but only their legal effect. The case of Cantley v. Hopkins, 5 S. & P. 58, we think is decisive of this question. In that case, the plaintiff’s suit was against ‘‘John Cantley” and the complaint averred the execution of the note by “defendant.” The note offered in evidence was signed “J. Cantley.” It was held, there was no variance. See also Chandler v. Hudson, 8 Ala. 366; Ross v. Clawson, 47 Ill. 402; Doran v. Crosby, 12 Ind. 634.

There is manifestly no merit in the objection taken to the allowance of the amendment to the complaint.

Reversed and remanded.