Acker v. Bender

33 Ala. 230

Opinion

RICE, 0. J.

Upon a careful examination of this case, as now pi’esented, we think it unnecessary to express our opinion upon many of the questions raised. It is evident that the case was tried and decided in the court below without a due regard to certain well settled principles, some of which we now proceed to state.

The title to personal property may pass by parol. The right or capacity thus to pass it is not destroyed or diminished by the mere fact, that it was acquired by an instrument under seal. A mortgage, although under seal, is a security for the payment of a debt. So far as it conveys to the mortgagee title to personal property, he may release or discharge it, by a sufficient parol agreement— by a subsequent valid verbal contract.—Wallis v. Long, 16 Ala. 738; Deschazo v. Lewis, 5 Stewart & Porter, 91; Addison on Contracts, (edition of 1857,) 1099.

It is competent for the parties to a mortgage, or to any contract, to waive their rights under it, in whole or in part, by substituting another and different contract in lieu of it.—Addison on Contracts, (ed. of 1857,) 1100; Lyth v. Ault, 7 Exchequer R. 669; Young v. Fuller, 29 Ala. 464; Thomason v. Dill, 30 Ala. 444.

The right of a mortgagee to personal property may be agreed to be settled or discnarged in one of two ways: “ either an agreement to do certain things may itself be the ground of settlement or discharge, or the doing of these things may be the ground of settlement or discharge.” If the agreement itself is the ground of settlement or discharge, the doing of the things agreed to he done is not essential to the validity or efficacy of the settlement or discharge.—Addison on Con. 1100; Flockton v. Hall, 14 Ad. & Ellis (N. S.) 380; Babcock v. Hawkins, 28 Ver. 561; Cartwright v. Cooke, 3 Barn. & Ad. 701; Bradley v. Gregory, 2 Camp. 383; Evans v. Powis, 1 Exchequer R. 601; Very v. Levy, 13 How. Rep. 345.

A man may always waive a condition in his own favor, and dispense with its performance. Every verbal contract is to be interpreted in connection with the surrounding circumstances; and the conduct and acts of the parties, in carrying out the engagement they have entered into, may be regarded in order to see what interpretation they have themselves put upon it, and what conditions have been waived or performed.—Addison on Con. 877-880; Morgan v. Smith, Wykoff and Nicholl, 29 Ala. 283.

The charges of the court, upon the effect of the agreement made by plaintiff and defendant, as shown by the evidence of Daniel Chandler, cannot be reconciled with the principles above announced, and are erroneous. For the error of those charges, we reverse the judgment, and remand the cause, without committing ourselves upon the other questions raised in the record.