Brown v. Isbell

11 Ala. 1009

• Court: Supreme Court of Alabama
• Decided: January 15, 1847
• Status: Published

Opinion

COLLIER, C. J.

The first count of the declaration is at least substantially sufficient. It professes to set out the contract of the parties according to its tenor. This contract.may be thus briefly stated: the defendant, by his attorney in fact, assigns to the plaintiff a bill single previously made by third persons, of which he (defendant) was the payee, the consideration of which was certain lands and mills purchased by the obligors of the defendant. At the time of the assignment, a bill was pending'in the court of chancery at Talladega for the enforcement of the . equitable lien on the lands and mills, at .the suit of the defendant. It was stipulated by the defendant that if the property should not sell for enough under the decree in chancery to pay the specialty to the plaintiff, then he (defendant) would make good the deficiency. Although the contract states that the defendant transfers or indorses the specialty, yet as it is affirmed to hewe-been filed in the county court of Talladega, we infer that there was no indorsement in the appropriate.meaning of the term. Be this.as it may, the defendant is not sought to be charged as an indorser, but on the special contract we have noticed. An indorsement must be made on the paper .itself, and,not by a writing separate and distinct from it, (Gookin v. Richardson, at this term); or on another paper annexed thereto, which is sometimes necessary when there are many successive indorsements to be made. [Chit, on Bills, 253; Story on Bills, 225.]

To entitle the plaintiff to recover, it is enough to show that a decree has been rendered in the suit in chancery, that the, lands and mills have been sold under its authority, that the amount produced by the sale was not sufficient to satisfy the specialty assigned to him, and what the deficiency is. The first count alledges all this, deduces therefrom the.defendant’s liability, and promise to pay; and the breach, at the conclusion of the declaration, avers the non-payment of the sums severally stated in the different counts. According to our liberal system of pleading, which regards matter of substance only, we cannot think it was necessary for the declaration to have been more full and special. Certainly it could not have been incumbent upon the plaintiff to entitle himself to an action, that he should have informed the defendant of the deficiency after a sale under the decree, and demanded payment thereof. The contract, neither in terms, nor under a proper legal interpretation, imposes such a condition, in order to make the undertaking of the defendant absolute. And certainly the rules of pleading do not require that the pleader in such case should alledge a notice, that the event has happened upon which the performance of his adversary’s promise may be enforced. The defendant was a party to the suit in chancery, and is in law presumed to have been cognizant of the decree that was rendered, and of all subsequent proceedings. His knowledge upon this point will be intended to have been equal at least to that of the plaintiff; consequently, the declaration need not have al-ledged a notice. [Carlisle v. The Cahawba and Marion Railroad Co. 4 Ala. R. 70.]

The act of 1837 “ to explain and amend the laws in relation to attachments,” provides, that when a suit shall be commenced in any circuit or county court, and the defendants, or any one of them, shall abscond or secrete, or shall remove out of this State, or be about to remove out of it, or shall be about to remove his or their property out of this State, or be about to dispose of his or their property fraudulently, with intent to avoid the payment of the debt or demand sued for, on oath being thereof by the plaintiff, his agent, &c. and oath being also made of the sum due, and that an attachment is not prayed for the purpose of vexing or harrassing the defendant or defendants, it shall be the duty of the officer before whom the affidavit is made, on the plaintiff, his agent,, &c. entering into bond with security, &c. in double the amount sworn to, conditioned to pay the defendant, &c. all such damages and costs as he, &c. may sustain by the wrongful suing out of the attachment, forthwith to issue the same, &c. returnable to the court in which the suit had been originally commenced, &c.; and the affidavit, bond and attachment, when returned, shall be filed with the papers in the original suit,, and shall constitute a part thereof, and the plaintiff in the suit may proceed to judgment as in other cases, and the original suit shall not be delayed. Property attached under such ancillary attachment may be replevied as in other cases, and the like consequences shall result, and proceedings be had for a failure to deliver it after judgment, &c. And the sheriff shall summon garnishees as under original attachments. [Clay’s Dig. 61, § 34, 35, 36.]

A summons, or a writ of capias ad respondendum is not necessarily the initiatory process in a cause, but a suit may be commenced by an original attachment issued against the estate of the defendant. An attachment is extraordinary process, and when levied and returned, becomes a suit in court, and if the jurisdiction is maintainable, and the cause of action made out, the plaintiff is as much entitled to judgment as if the suit had been instituted in the ordinary mode. If then the act in question is to be literally interpreted, there is no doubt but an ancillary may succeed an original attachment, and we know of no warrant under the circumstances, for the adoption of a different rule of interpretation. It would perhaps be competent to dismiss the ancillary attachment, or quash the levy thereof, where the estate of the defendant levied on under the original attachment was unquestionably ample to satisfy the demand sought to be recovered. However this may be, if the ancillary attachment was vexatiously sued out, the plaintiff will be liable to respond to the defendant in an action for damages. There is nothing in the record to indicate that the assistant process in the present ' case operated oppressively or unjustly upon the defendant, or that the levy under both attachments was excessive, and if these facts were affirmatively shown, it might then be asked if the overruling a motion to quash in such case, is revisable on error. The conclusion we have expressed upon this branch of the case, is strengthened from the consideration that the attachment law is remedial — “ not to be rigidly and strictly construedbut shall be so expounded as to afford a convenient and sufficient remedy. [See Clay’s Dig. 59, § 17.]

The counsel for the plaintiff in error has not pointed out a variance between the contract declared on and that offered in evidence, and from the comparison we have given to them as copied in the transcript, we have discovered no discrepancy.

In Ansley v. Carlos, 9 Ala. 973, it was held that the original papers in a cause are not admissible evidence, if the final record has been made up by the clerk as required by the statute. I did not then express an opinion upon the point, and perhaps that case might have been disposed of without deciding it, but my brethren are satisfied that the law is there correctly laid down, the decision is therefore authoritative, and I of course acquiesce. In the case before us, it is distinctly affirmed, that the final record had been made by the register as directed by law, of. the papers in the suit in chancery to which the contract declared on, referred, so .that the admission of the original papers as evidence was opposed to the case cited, and consequently erroneous.

The plaintiff could not have been required to produce at the trial the bill single made by the Longs, of which he was the assignee. It does not appear that it was in his possession or under his control, nor can it be inferred in the absence of all evidence, that he withdrew it from the custody of the clerk of the county court of Talladega, with whom it was when the- assignment was made. It was not the foundation of his action. He declared on a special contract in which the specialty was set out in extenso, with an undertaking to pay it, if the means of payment should not be procured from another source. Its production then, not being necessary to entitle him to recover, and it not appearing to have been in his possession, the court very properly refused any compulsory order requiring it to be brought into court.

The competency of Knox to prove that he was authorized to make the contract declared on, is not denied, but it is insisted by the defendant that the declarations of this agent made previous to, and simultaneous with it, are admissible to show the extent of the defendant’s liability. We have repeatedly held, that the parol evidence of contemporaneous stipulations is inadmissible to control or vary the legal effect of a written instrument. But where the writing is incomplete, and does not profess to set out the entire contract, pa-rol evidence has been received to prove the part omitted; and to authorize the admission of such testimony, it is said not to be necessary that the writing should expressly and directly rebut the presumption of completeness. So it has been held, that, where an executory agreement not within tlm statute of frauds, expresses no consideration, it is allowable to show what the consideration actually was. And where a writing has been executed byway of part performance of a parol contract, as where a chattel has been sold with warranty not in writing, and a note given for the purchase money, the pa-rol contract is not merged in the note. All these principles have been recognized by us, as well as by English and American decisions. [See 3 Phil. Ev. C. & H's Notes, 1471 to 1476.]

In the case at bar the contract declared on does not profess to set out the consideration, but merely acknowledges that the assignor had received value as an inducement to enter into it. According to the principles laid down, it was clearly competent for the defendant to prove by extrinsic evidence what was the true consideration, that he might show it was insufficient, or had failed either in whole or in part, and thus defeat a recovery entirely, or pro tanto. If the plaintiff was informed of the agreement between the defendant and Riddle, and was merely substituted for the latter, both in respect to the consideration and the terms of the contract, we should think it would be allowable as against him, to show what the consideration was, in the same man-met as if Riddle had been the party contracted with. If the transfer of the note of the Longs was received by thé plaintiffs upon trust, either in whole or part for Riddle’s benefit, to the extent of Riddle’s interest, it would be competent for -defendant to set off a demand against him, if it can be inferred that the plaintiff became the assignee under the agreement that such sets off as the defendant was the proprietor of, beyond the sum stated by Knox, (viz : six or eight hundred dollars) should be allowed. But in the absence of an understanding upon this point, either express or implied, we think the indebtedness of Riddle to the defendant is not admissible ms a set off to diminish the plaintiff’s recovery. Whether the transaction between the plaintiff and defendant, and the statements by Knox to the former, do not warrant the inference that there was such an understanding, is a question which does not arise, and which the evidence as recited in the record would not enable us to determine.

Evidence that the plaintiff holds the specialty assigned to him in trust for another, and not in his absolute right, will not contradict the assignment — it admits and affirms it, and establishes a fact beyond and independent of it. Such evidence is admissible both on principle and authority. [3 Phil. Ev. C. & H’s Notes, 1473, and cases there cited.]

It cánnot be intended that the note given by Riddle to the plaintiff, was in the possession of the latter or his attorney in court, when he was called on to produce it; if this fact had been shown, perhaps the notice at the trial would have been sufficient to let in secondary evidence of its contents upon the failure'to comply. But in the absence of proof that the note could have been produced without delaying the trial, prima facie the notice was insufficient. [3 Phil. Ev. C. & H’s Notes, 1184 to 1186.]

There is nothing in the record to indicate that the sale of the lands and mills under the decree in chancery was void, and not such as the contract declared on contemplates. The sale must, as the defendant was the actor in the cause, have had his sanction — he should have executed a regular bond for restitution; and if the proceedings consequent upon the decree are in any manner defective, he cannot set up the defect to defeat the plaintiff’s action. The confirmation of the register’s report of the sale, operated retrospectively, so that the institution of the suit between the sale and confirmation, was not premature.

The evidence recited in the bill of exceptions, does not implicate the plaintiff in a design to defraud the defendant or his attorney, and consequently the prayer for an instruction, predicated of such a hypothesis, was rightly refused.

It Avas not proved that Riddle had paid the plaintiff the note which Knox testifies he gave him, and its payment cannot therefore be assumed as a fact. But if this note had been discharged, still it would be competent for the plaintiff to maintain an action for the benefit of Riddle, or whoever might be entitled to what is recovered.

What we have said will be sufficient to guide the ulterior action of the circuit court in the trial of this cause — we have seen that there was at least one error in the points presented for revision — the judgment is consequently reversed and the cause remanded.