Wellden v. Witt, 40 So. 126

40 So. 126 | Ala. | 1905

DENSON, J.

-Detinue by John R. Witt against James Ed Wellden to recover a mule. Plaintiff obtained judgment in the circuit court, and the defendant appealed.

The defendant, under section 1477 of the Code of 1896, suggested that the plaintiff’s title was based on a conditional sale contract reserving title to him until the purchase money was paid. He also pleaded the general issue and several special pleas. Issue was joined on the general issue, the suggestion and plea of tender. The court struck from the file or sustained a demurrer to pleas A, B, D, Gr, X, and Y. Plea of non detinet put in issue the right of the plaintiff to recover. The record, affirmatively shows that defendant had the benefit of ” the defense set up by these pleas under the plea of the general issue. — Carlisle v. People’s Bank, 122 Ala. 446, 26 South. 115 ; Foster v. Chamberlain, 41 Ala. 158 ; Grunewald Co. v. Copeland, 131 Ala. 345, 30 South. 878. Hence, if the court erred in the ruling on the motions and demurrers to the pleas, the error worked no injury to the defendant.

Witt agreed to sell Wellden the mule for $125, and to take a note with Bryant McKinney as surety for the purchase money due 11 months after date. A negotiable note reserving title to the mule in Witt until the note was paid was drawn by Witt and delivered to Wellden to sign and get McKinney to sign. Witt failed to write in the note that it ivas to bear interest from date. The note was signed by Wellden and McKinney,' and ivas carried by Wellden and presented to Witt. The signatures of the parties to the note were not witnessed, and Witt had Wellden to take the note back and have it witnessed, and told Wellden when he got the .note properly witnessed he could hand the note to his (Witt’s) wife and take the mule, in the event Witt ivas not at home when he brought the note. Wellden complied with Witt’s request and instructions. But as Wellden ivalked out of the gate leading the mule, Witt, who had just returned home after the note ivas delivered received the note from his wife and ivalked out to where Wellden ivas in possssion of the mule, and calling the attention of Wellden to the note told him that they had overlooked waiting in the note the words with interest from date. Up to this point there ivas no conflict in the evidence. Witt testified that it was a part of the agreement that the note should bear interest at the rate of 8 per cent, per annum from its date, and that Wellden when told about it admitted that a mistake had been made in this respect in drawing the note. Wellden denied making the admission, and testified that no agreement had been made by him to pay the interest, and that he ivas to pay only $125 for the mule. Witt further testified that at the time he called Wellden’s attention to the note he agreed that Witt might insert in said note the ivords, “with interest at eight per cent, per annumthat Witt then informed Wellden that to make the insertion in the absence of McKinney ivould invalidate the note as to McKinney; that he and Wellden then agreed to go, and did go, to a nearby store to have one Henderson Legg witness the insertion of said words in the note; that they called Legg to them and in his presence the two agreed that the words should he inserted in the note, and further agreed that, if McKinney would not consent to said change in the note, there ivas to be no trade and no sale; that it was further agreed that Witt should write McKinney and endeavor to obtain his consent to the change in the note, and defendant was to see him and make an effort to- get McKinney’s consent to the change. Witt then made the'alteration in the note as stated. Witt’fe testimony as to what occurred in the store is corroborated by that of Legg. Witt further testified that Wellden did every thing with reference to the note that he requested him to do up to the time he called his attention to the omission of interest in writing the note. Wellden testified with reference to the change made in the note substantially as follows: That as he got outside the gate into the road with the mule, Witt came out and told him that he (Witt) had forgotten to put interest in the note, and asked him to consent to his inserting in the note the words with interest from date; that he told Witt that could not be done without McKinney’s consent, but that he might put in the words at his (Witt’s) oivn risk if he wished to do so; that he had had so much trouble about the matter that he consented to pay interest, though there never had been anything said about interest on the note, nor had there been any agreement that he ivas to pay interest; that plaintiff told him, if he was willing.or would consent to it, he (Witt) would insert the words and take the risk himself of getting McKinney to consent to the alteration; that they went into the store and called Legg to witness the change, and in the presence of Legg the change was made; that not a work was said about there being no trade in the event McKinney Avould not consent the change in the note; that he never agreed Avith plaintiff that there was to be no trade if McKinney did not consent to the alteration; that it Avas agreed that plaintiff should write to McKinney, and if he consented to the alteration his reply Avas to be pinned to the note; that plaintiff said this Avould make it all right. Me-Kinney did not consent, and tlie suit was brought before the maturity of the note. Defendant further testified that at no time before the commencement of the suit had the plaintiff ever offered to return the note to him.

From the foregoing- facts it cannot be said that any fraud was practiced or attempted to be practiced on the plaintiff in the delivery of the note and getting possession of the mule on the delivery of it to the wife of the plaintiff. The defendant had complied with plaintiff’s request with respect to having the signatures attested' by a witness, had delivered the note, and had taken possession of the mule — all in strict compliance with the request and instructions of the plaintiff. We do not think it Avould be reasonable to hold that there Avas no deliArery of the note. The plaintiff drew the note, and, if his contention that it Avas to bear interest from date is true, yet the failure to insert the stipulation in the note Avas due to his inattention or negligence, not superinduced by any conduct or influence of the defendant. Whih1 tins might afford, and doubtless Avould afford, the plaintiff the right, on refusal of defendant to correct the contract, to go into a court of equity and haAre the contract corrected on the ground of mistake, Ave do not think that it prevented the contract of sale from being a complete or effectual one. As long as it stood as it Avas Avhen delivered to plaintiff’s Avife,.in the absence, of a subsequent modification by mutual consent, the note was the sole expositor of the terms of the contract, not subject ' to be varied by proof of stipulations made prior to its execution, and under it the plaintiff could not maintain detinue until it matured, and there was default in payment of the purchase money. — Cannon v. Lindsey, 85 Ala. 198, 3 South. 676, 7 Am. St. Rep. 38 ; Seymour v. Farquhar, 93 Ala. 292, 8 South 466 ; Forbes v. Taylor, 139 Ala. 286, 35 South. 855 ; Juzon. v. Toulmin, 9 Ala. 622, 44 Am. Dec. 448 ; Faukner v. Smith, (Iowa) 55 N. W. 200, 45 Am. St. Rep. 230.

It Avas after the note had been delivered by defendant to plaintiff’s Avife, and defendant had taken possession of the mule, that the question Avas raised as to the failure of the note to express all the terms of the contract. Granting that nothing was said or agreed about interest originally, it was entirely competent for the parties subsequent to the execution and delivery of the note, by mutual consent, to embody the payment of interest as one of the terms of the note; and it was also competent for them to agree that, if McKinney would not consent to the change made in the note agreed to between plaintiff and defendant, there should be no trade or sale between plaintiff and defendant. Such an agreement would constitute a rescisison by mutual consent. That a contract may be modified or rescinded by mutual assent of the parties, and that, without any new or additional consideration, is a proposition too well known to admit of further discussion. — Hembree v. Glover, 93 Ala. 622, 8 South. 660 ; Mylin v. King, 139 Ala. 319, 35 South. 998 ; 3 Brick. Dig. 132, § 146.

We think the rescisison, vel non, was the pivotal point in the case. The plaintiff insisted that the contract was rescinded by mutual assent, and the defendant combated the insistence. The evidence on the question was in conflict, thus making it one peculiarly in the province of the jury for determination. If the jury should find that there was a rescission, there was nothing in the case to prevent verdict for the plaintiff; if the contract was not rescinded, the suit was prematurely brought. To effect rescission it was necessary that each party should be restored practically to the condition which they were before the contract was made. To this end, it was incumbent on the plaintiff to restore or to offer to restore the note to the defendant. It was conceded that the note was not restored, nor was any offer made by the plaintiff to «restore the note to the defendant, before he commencement of the suit; but it was conceded that the plaintiff did on the trial, and before judgment, offer to restore the note to the defendant, and. he declined to accept it, unles plaintiff would accept the money the note stipulated for. It seems that it has been held by this court that such an offer made on the trial, to restore the note, is sufficient. We therefore hold that it was sufficient in this case. Moreover, it seems to be almost certain that any offer to restore made even before the commencement of the .suit would have been refused by the defendant. His contention was that there was no agreement to rescind, therefore an offer to deliver up the note would have been fruitless.- — Henry v. Allen, 93 Ala. 197, 9 South. 579 ; Wilcox v. San Jose Fruit Pack-ing Co., 113 Ala. 519, 21 South. 376, 59 Am. St. Rep. 135 ; Jones v. Anderson, 82 Ala. 302, 2 South. 911.

Upon the foregoing consideration, it is apparent that the court did not err in refusing the written charges requested by the defendant. We are constrained to hold, however, that the court erred to the prejudice of the defendant in that part of the oral charge which was excepted to by him. There is no merit in the two exceptions reserved by the defendant to the rulings of the court on the admissibility of evidence. For the error pointed out the judgment must be reversed, and the cause remanded.

Beversed and remanded.

Tyson, Dowdell, and Anderson, JJ., concur.