81 So. 2d 273 | Ala. | 1955
One M. V. Stokes had a mortgage on the plant and property of Covington Consolidated Packing Company, a corporation, which is located in Covington County, Alabama. The mortgage was being foreclosed and a suit was filed by the company in order to enjoin the foreclosure. In connection with the suit a hearing was had before the court to fix the amount of the injunction bond, with the result that a bond in the amount of $10,000 was executed in favor of M. V. Stokes by Covington Consolidated Packing Company, a corporation, and T. C. Smith, one of its officers, as principals together with D.C. Clark, G. D. Wilder and A. C. Wilder, Sr., as cosureties. Subsequently judgment was recovered on the injunction bond against the cosureties in the amount of $9,137.35. A. C. Wilder, Sr., and D.C. Clark each paid one-half of that amount. D.C. Clark thereupon filed *56 the present suit against A. C. Wilder, Sr., claiming damages for the breach of an alleged oral agreement whereby A. C. Wilder, Sr., allegedly promised to indemnify and save D.C. Clark harmless against all loss or damage which he might sustain by reason of D.C. Clark becoming cosurety on the aforesaid injunction bond. There was a verdict and judgment in favor of D.C. Clark against A. C. Wilder, Sr., in the amount of $5,037.79. It is from this judgment that the present appeal was taken.
The appellant A. C. Wilder, Sr., presents one question for decision in this case. He takes the position that the complaint shows on its face that the agreement which he is alleged to have made was an oral agreement and being an oral agreement is invalid by reason of the violation of the statute of frauds. § 3(3), Title 20, Code of 1940. There was a demurrer to the complaint on the ground that the complaint showed on its face that the alleged agreement was not in writing.
In Posten v. Clem,
Briefly stated Posten v. Clem, supra, holds that the promise of one cosurety on a note or obligation to hold another cosurety harmless thereon is within the statute of frauds. The foregoing decision was decided in 1918 and has never been departed from and we are not disposed to hold differently at this late date.
It is argued by the appellee that the ground of demurrer to which we have referred is not sufficiently specific and therefore is in violation of § 236, Title 7, Code of 1940. With this we do not agree. The complaint shows on its face that the alleged agreement was an oral contract and the ground of the demurrer is that the complaint shows on its face that the alleged agreement was not in writing. This clearly raises the proposition that the contract sued on is in violation of the statute of frauds.
In Bunch v. Garner,
In approving the foregoing statement of principle we take cognizance of McDonald v. McDonald,
It results that the judgment of the lower court must be reversed and the cause remanded.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. *57