Cowan v. Cooper

41 Ala. 187

• Court: Supreme Court of Alabama
• Decided: June 15, 1867
• Status: Published

Opinion

A. J. WALKER, C. J.

This suit is founded upon a written promise to pay five hundred dollars, to be void if any of certain named persons should put in any plea or defense to prevent the probating of a specified will. The defendant was permitted to prove an agreement, prior to the execution of the promise, exacted as an indispensable pre-requisite thereto, that she should not be sued or disturbed in any way about certain property given te her by a specified will. This evidence, going to the consideration, was not obnoxious to the rule as to the variation of written contracts by parol evidence.—2 Parsons on Contracts, (5th ed.) 555; Thomas v. Barker, 37 Ala. 392; Corbin v. Sistrunk, 19 Ala. 203; Honeycut v. Strother, 2 Ala. 135; Simonton v. Steele, 1 Ala. 357; Barlow v. Fleming, 6 Ala. 146. The evidence of the institution, after the execution of the defendant’s written promise, of a suit by the plaintiffs for two of the slaves bequeathed to the defendant in the specified will, was obviously admissible, on account of its effect upon the point of a failure of consideration.

[2-3.] Exceptions were taken in the court below, to the exclusion of evidence offered by plaintiffs, tending to impeach the will, the contestation of which by plaintiffs was guarded against by the contract. The only point of view, in which this evidence could have been admissible in this suit, is to show that the validity of the will was doubtful, and therefore an agreement not to contest would constitute a valid consideration.—Prater v. Miller, 25 Ala. 320. The plea of the defendant was the general issue, “with leave to give any matter in evidence which could be specially pleaded in bar.” We therefore can not ascertain, from the plea, that the defendant in any wry controverted the proposition, that there was such doubt of the validity of the will as would constitute a legal consideration for a promise to pay for a forbearance to contest. The bill of exceptions does not show that the defendant controverted the consideration, on the ground of the absence of such doubt, but tends very strongly to show the contrary. There seem to have been two considerations for the contract of the defendant — the forbearance to contest the will, and the forbearance to disturb the defendant’s right to certain property bequeathed by the will. So far as the former is concerned, there seems no controversy by the defendant. So far as the latter is concerned, the defendant’s efforts seem to have been directed to the proof of a failure on the part of the plaintiffs to fulfill their promise of abstinence from suing or disturbing the defendant in her right to the specified property. The mere plea of, a want of consideration did not throw upon the plaintiffs the onus. Unlike the case of Prater v. Miller, (supra,) this -suit is upon a written promise to pay, the consideration of which is presumed. The statute provides, that when its consideration is impeached by plea, “the burden of proof is on the defendant.”—Code, § 2278. Therefore, the consideration was an established fact, which would be asserted by the court to the jury, except in so far as it was assailed by the evidence. Then, inasmuch as there was no evidence attacking the consideration, to the extent of its dependence upon the doubtfulness of the validity of the will, the testimony offered by the plaintiffs, conducing to show such doubtfulness, would have been clearly redundant; it would have been mere proof of a fact which the law presumes. Such testimony the court is not bound to receive, and we will not reverse for the failure to receive it..

The court was asked to charge the jury, that the suit brought by the plaintiffs, for the recovery of two. slaves bequeathed to the defendant, was no violation of the contract “sued on.” Such a suit was certainly no violation o£ the written contract; but it was a violation of the agreement, which constituted a part of the consideration of that contract. We understand the charge requested and refused, to- specify the particular contract sued upon, which is in writing, and set forth in the complaint, and to assert that that contract was not violated. The distinction between a violation of the written contract, and of the promise which constituted in part its consideration,, is important. We-think the charge, as asked, should have been given.

Reversed and remanded.