124 Ala. 580 | Ala. | 1899
— The contract here sued on is set out in the complaint as follows: “January 13, 1893. Huntsville, Ala. We the undersigned jointly and individually covenant and agree with Henry L. Jones that if he will place his brother, John A. .R. Jones, in the Hagey Institute iii the city of- Huntsville, Ala. to be treated as a patient addicted to the excessive use of -morphine and chlorál, and the said Henry Li Jones Avill pay in cash the'sum of one hundred "dollars to the proper officer'of the Hagey Institute, that Ave will return on demand to the said Henry L. Jones the said sum of one hundred dollars, provided the said John A. R. Jones is not fully and permanently cured by the treatment of said Hagey Institute- of the use and habit of morphine and chlorál.”
This contract in terms is plainly an original undertaking betAveen the plaintiff and defendant, and consequently not open to the defense of the statute of frauds relating to “promises to ansAver for the debt, default or miscarriage of another.”
As shown by the evidence, the plaintiff’s brother, John A. R. Jones Avas addicted to the habitual and excessive use of morphine and'chloral, and it Avas of this excessive use and .habit, by the terms of the contract, he Avas to be cured. He entered the institute ánd received treatment for that purpose, and after receiving treatment he left said institute, claiming that a cure had been effected, but AAdth'in a short Avhile thereafter returned to' his former habit and' excessive use of these drugs. ’ ,
One difficulty in the cáse seems to groAv out of the construction to be given to the words “fully and per
The plaintiff against the objection of the defendant Avas permitted to amend his complaint by averring “that said covenant agreement in writing was and- is lost, mislaid or destroyed at the time of the filing of this complaint and bringing this suit.” The purpose of amendment, as indicated in the, argument of counsel Avas to bring the suit within the influence of section 2597 of the Code of 1886, Avherein provision is made for suits upon certain lost instruments therein mentioned. Upon examination of this statute, it will be seen that the contract here sued on does not come Avithin the class of instruments specified in the statute. Not being one of the instruments named in the statute, the amendment amounted to mere surplusage, and did not change, under
The court also against the objection and exception of the defendant, after proof of loss of the original contract, permitted plaintiff’s witness, Matthews, to refer to that portion of the complaint setting out the contract, as a memorandum to refresh the witness’ memory, and also permitted the same to be read in evidence as a memorandum of the contract. The complaint was drawn by plaintiff’s attorney, and this was some time after the loss of the original contract. The witness testified that some time before the suit was brought, he was at the office of the plaintiff’s attorney, and there dictated his recollection of the contents of the lost contract and the attorney wrote the same down. He did not identify the paper handed Avitness, which was the complaint, as being the one Avritten at his dictation by tlie attorney.' This Avitness, speaking Avitli reference to the alleged memorandum, said:' “I mean to say that these are the words that I gave Judge Richardson to put down. It is not my testimony that this is the paper [referring to the complaint which he then held in his hand] that Avas before me at that time. I do not knoAv whether it is the same paper or not. I only testify to portions of the contract according to my recollection.” The original contraed is sliOAvn to have been placed in the hands of this Avitness under date of its execution, January 13, 1893, but it is not shown how long since he had seen it Avlien he dictated his recollection of its contents Avritten doAvn by plaintiff’s attorney. The complaint Avas filed Jan. 4th, 1894, a year after the execution of the contract. Presumably months had elapsed at the time of the dictation since the Avitness had seen the contract. Under this state of the evidence,, the paper not having been sufficiently identified- as a memorandum made by the witness, or by another at his dictation, could not be used for the purpose of refreshing Avitness’ memory as to the contents of the lost contract, and certainly was not admissible in evidence as a memo-: randum of tlie contents of the lost contract. — Maxwell v. Wilkinson, 113 U. S. 656; Calloway v. Varner, 77 Ala.
Where the contract' declared, on is in writing, as is the case here, it is the duty of the court to construe it;'and not the jury. Charges 1 and 2 given at the request of the plaintiff;. besides being misleading, are obnoxious to this principle and should have been refused:
The plaintiff, if he recovers at all, must' recover upon the contract declared on,' and Cannot recover on some other contract that may be disclosed by the evidence different from the one' upon which the suit is based. Written charge 5 given át the request of the plaintiff, is faulty in that it does not limit' the plaintiff’s right of recovery to the contract sued on, but leaves it open to recover on any contract that may be disclosed by the Evidence. The common counts had been eliminated by the charge of the court, which left only the count declaring on a special 'contract. Under the pleadings, 'the contract declared on was in issue, and there was a material conflict in the evidence as to what' was the contract between the parties. 'The testimony of the defendant Wellman, shows a different contract from the one sued on. HE states that the contract into which he entered with the plaintiff did not contain the -word “covenant,” nor the words “fully and permanently cured,” but that the contract was an agreement that the treatment would cure plaintiff’s brother of the “morphine habit '/’ whereas the contract sued on provided not only for the cure of the morphine habit, but also the habit and excessive úse' of chloral. ' '
It is error in charging the jury for the court to asume as established or proven, any fact that is in dispute in the evidence. Charges 3, 4 and 9 are vicious in assuming as proven the contract declared on, and' should have been refused. , ‘
It is a conceded fact that the Hagey Institute is a domestic-corporation:, chartered under the law of the State, one of the purposes, among others, of this corporation being to provide and furnish a treatment for persons addicted to the use of morphine and chloral. Among other defenses set up by the defendant, was that
The question as to whether the Hagey Institute was required under the law to .obtain a certificate from the medical board of examiners, under the undisputed evidence in the case being a question of law for the determination of the court, it was error to refer this questtion to the jury, and for that reason charges 7 and 8 requested by the plaintiff should not have been given.
It is a Avell settled principle that he Avho prevents the performance of- a contract cannot avail himself of its non-performance. Rut this doctrine has no application Avhere both parties fall into a mistake under the honest belief that the contract has been performed, when in fact it has not. Although at the time the plaintiff’s 'brother left the Hagey institute, its managing officer as Avell as the plaintiff and his brother were under the mistaken belief that the patient had been cured, yet if as a matter of fact a cure had not been effected in accordance with the conditions of the contract, the plain • tiff would not be deprived of his right of action groAving out of the failure to cure.
For the errors pointed out the judgment of the court beloAY must be reversed and the cause remended.
Reversed and remanded.