Brown v. O'Byrne

45 So. 129, 153 Ala. 621

• Court: Supreme Court of Alabama
• Decided: June 15, 1907
• Status: Published

Opinion

SIMPSON, J.

— This was an action by the appellant against the appellee, seeking to recover on a certain written lease set ont in the pleadings. The lease, in its body, states that it is made “by and between W. A. Brown and McDonald & Bowers,” and is signed by said Brown and M. Bowers and Henry McDonald, the partners of said firm of McDonald & Bowers. There also appears, after these signatures, the name of the appellee, and the complaint alleges that by signing his name thereto the defendant agreed to guarantee the performance of the covenants contained therein on the part of said McDonald & Bowers. It is too well settled in this state to admit of controversy that where an instrument in writing purports on its face to be made by certain parties named therein, and the signature of a party not named therein appears to the instrument, it is not the deed or contract of said last-named party, and parol testimony is not admissible to show that he intended to bind himself thereby. — Fite, Porter & Go. v. Kennamer, 90 Ala. 470, 7 South. 920; Hammond v. Thompson, 56 Ala. 589; Blythe v. Dar gin, 68 Ala. 370; Davidson v. Ala. Steel & Wire Go., 109 Ala. 383, 19 South. 390; Agr. Bank of Miss, et al. v. Bice et al., 4 How. (U.. S.) 225, 11 L. Ed. 949; Lancaster et al. v. Roberts et al., 144 111. 213, 33 N. E. 27; Evans v. Gonklin et al., 71 Hun. 536, 24 N. Y. Supp. 1081; Blackmer v. Davis, 128 Mass. 538. It may be added that to allow the liability as guarantor to be established by parol in this case would be violative of the statute of frauds.

The demurrers to the complaint were properly sustained, and the judgment of the court is affirmed.

Affirmed.

Tyson, C. J., and Haralson and Denson, JJ., concur.