Young v. Fuller, 29 Ala. 464

29 Ala. 464 | Ala. | 1856

RICE, 0. J.

After the note on Benjamin Fuller had been endorsed by the plaintiff to Fleming Young, the endorser and endorsee had the right to rescind or modify the contract evidenced by the endorsement, and to put their contract in any shape they pleased. In the exercise of that right, they made the agreement which was read in evidence. That agreement violates no rule of law. It was subsequent to the endorsement, and in relation to the same subject-matter ; and it must, therefore, control the endorsement; so far as it may conflict with it. — Lightfoot v. Strahan, 7 Ala. R. 444. It provides that, “ if said note is proven to be void for want of consideration, or reduced by lawful off-sets, so that said Fleming Young loses his interest in said note by such off-sets or want of consideration, then the said Isaac W. Fuller' to return the property paid for said interest in said note, to-wit, one gold watch,” &c., &c. * * * “But if it should appear that said note on Benjamin Fuller is a bona-fide -note, and given for a valuable consideration, and not paid off, or reduced under eight hundred dollars by legal off-sets, then the said Isaac W. Fuller to keep said property and receive the full amount of money and interest for said notes of Fleming Young and William Young ; and said Fleming Young to use all due diligence to prove said note on Benjamin Fuller to be a bona-fide note by the first of January, 1847, or as soon thereafter as practicable, at his, Fleming Young’s, own expense and costs, and not to charge any of the cost or expense of procuring said proof to the said Isaac W. Fuller,” &c., &c.

By that agreement, the plaintiff (Isaac W. Fuller) took upon himself the risk of the defenses to the note on Benjamin Fuller, which were mentioned and specified in the agreement, to-wit, want of consideration, set-off, and fraud. But he certainly did not take upon himself the risk of the defense of the statute of limitations. The terms of .the agreement exempt him from the risk of that defense, upon the maxim, expressio unius exclusio alterius. It was therefore proper to allow the plaintiff to introduce the parol evidence, to show that the suit brought by Young against Benjamin Fuller, on the note of the latter, “ went off alone upon the defense of the statute of limitations.” That evidence did not contradict the record, but was consistent with it, and explained and gave point and direction to it. — Bakes v. Pope, 7 Ala. 161.

We understand the charge of the court as asserting, in substance, that if in the suit of Young against Benjamin Fuller, which was not commenced and prosecuted with the statutory diligence, a recovery was defeated alone by the plea of the statute of limitations, that recovery alone would not, under the agreement between Isaac W. Fuller and Fleming-Young hereinabove noticed, amount to a defense to the present .suit. And we regard the charge as correct. — Murphy v. Pearson, 9 Ala. Rep. 276.

There is no error, and the judgment is affirmed.

Walker, J., not sitting.