Marshall v. Bishop

140 Ala. 206

Opinion

McCLELLAN, C. J.

There was evidence going to show that the endorser, the defendant here, expressly and unconditionally promised the payee to pay the note immediately after its maturity and from time to time thereafter. Direct testimony that these promises induced the payee to forego suit against the maker to the next ensuing term of the court was not offered, nor would it have been admissible; but it was open to inference and deduction by the jury-that the promises had this effect. So finding,' the case is brought within the exception provided by sub-div. 7 of § 894 of the Code of 1896; Brown v. Fowler, 133 Ala. 310.

The affirmative charge took away from the jury the right to find that the endorser had made these promises and that the payee had been induced by them to delay suit against the maker. The court erred in giving it.

Reversed and remanded.