Tarleton v. Southern Bank

41 Ala. 722

• Court: Supreme Court of Alabama
• Decided: January 15, 1868
• Status: Published

Opinions

A. J. WALKER, C. J.

The trial in the court below resulted in a nonsuit, taken by the plaintiff in consequence of rulings upon questions of evidence. We shall restrict this opinion to those questions. The bill of exchange, which is the subject of suit, was drawn at Mobile, in August, 1862, by the Southern Bank of Alabama, on a party in New Orleans, in favor of Alfred Batre, who endorsed it to the plaintiff. At the date of the bill, the two cities o^ Mobile and New Orleans were in the possession of antagonistic belligerents, flagrante hello. That fact is proved, as an excuse for the delay in the presentation 'to the drawee, which was not made until the war closed. The defendant then offered to prove, by said Sampson, “that it was understood and agreed between the defendant and said Batre, at the time of drawing said bill, that, if the bill could not be sent to New Orleans in a short time, it should be returned to the bank, and the same amount of money that Batre had paid for it, which was Confederate treasury-notes, should be returned to him.” The exception to the admission of this testimony presents the material question to ,be decided by us.

An ancient and well-known principle forbids the introduction of parol evidence, which effects an alteration of a written contract. This rule, touching the remedy only, is subject to legislative control. The convention, exercising the legislative power of the State, on the 28th September? 1865, adopted an ordinance, the third section of which abolished that rule, to a limited extent, as to a certain class of contracts. . That section is in the following words: “ In all suits upon contracts made between the first of September, 1861, and the first of May, 1865, parol evidence shall be admissible to prove what was the consideration thereof, and whether or not the parties thereto understood or agreed that the same should be discharged by a payment in Confederate currency or treasury-notes; and if so, or if it appears so from the contract, then to show what was the true value of the consideration of the said contract, and what amount the plaintiff is legally, justly, and equitably entitled to receive according to the contract, by the judgment of the said court.”

It is certain that, under this section, parol evidence is admissible for two purposes : first, to show the consideration of the contract; and, secondly, to add to the contract, as expressed in writing, a stipulation that it might be discharged in Confederate currency or treasury-notes. As to its admissibility to a farther extent, or for other purpose, we are not required to say anything. The testimony above quoted states, that the bill of exchange was given for Confederate treasury-notes. It therefore had an immediate bearing upon the point of the consideration. The remainder of the testimony showed, or tended to show, an agreement that, in the event the bill could not be sent to New Orleans in a short time, it should be returned, and discharged with like money. We intend no intimation as to the sufficiency or .insufficiency of the evidence. Our purpose is accomplished! by ascertaining the tendency of the evidence, and we inquire no farther. This evidence, bearing upon the question of an agreement for the discharge of the bill in Confederate treasury-notes, was, under the ordinance, admissible. It was permissible for the defendant to show that the consideration was Confederate currency, and that there was an agreement for its discharge, in a specified contingency, in like money. The evidence being relevant to these points, it was admissible.

If Batre agreed that, in the contingency of an inability to send the bill to New Orleans in a short time, he would return the bill for discharge by the bank in Confederate treasury-notes, the contract, as modified by the parol evidence, was alternative. In the specified contingency, it was Batre’s duty to return the bill, and to afford an opportunity for its discharge according to the agreement; and there was a corresponding right in the defendant.

The other evidence, to the admission of which exception was taken, was admissible in the point of view which we have presented.

While we intend to express no opinion upon the question, whether Tarleton was a holder with notice of the defensive matter, we remark, that there was evidence touching it, which it was proper to leave to the consideration of the jury.

The foregoing is the opinion at first delivered in this case. Since its delivery, a re-hearing has been granted, upon the petition of the able counsel for the appellant. Are-examination of the subject has confirmed us in the opinion above expressed. The learned counsel contends, that if a contract specify a particular currency, or money, in which payment is appointed to be made, it is incompetent to prove a conflicting agreement or understanding for payment in Confederate treasury-notes; and if the ordinance of the convention be understood to authorize such proof, that it impairs the obligation of contracts. It is conceded that, at common law, such proof would be inadmissible. Why would it be inadmissible ? Simply because a rule of evidence intervenes to prevent the ascertainment of the contract, if it was variant from the written instrument. The ordinance therefore designs, by a chage in the rules of evidence, to assist in the ascertainment of what the contract really was, and does not interfere at all with its obligation. It is well settled, that a change in the rules of evidence does not impair the obligation of contracts.—Scheible v. Bacho, at the present term; Ex parte Pollard, 40 Ala. 77; Bloodgood v. Cammack, 5 St. & P. 276; Bartlett v. Lang, 2 Ala. 401.

It is also contended, that to allow the defense set up in this case would impair the rights of an innocent holder of a bill of exchange for a valuable consideration, and let in a defense to the instrument in his hands, which was not by the law available against him; and that therefore the ordinance, in its effect upon this case, impairs the obligation of the contract, as between the drawer and innocent endorsee. This question does not arise in this case. The court ruled in favor of the admissibility of certain testimony, and the plaintiff thereupon took a nonsuit. We are therefore only to decide upon the admissibility of the evidence. The question would arise, if it appeared conclusively that the plaintiff was an innocent endorsee. It does not so appear. There was such evidence as required a reference of the question of innocent holder to the jury-A witness (Sampson) proved the contract as herein before stated; and there was evidence from which it might have been argued before the jury, with what correctness it is not for us to say, that this contract was communicated to the plaintiff. ' As it was a question in the case whether the plaintiff was an innocent holder, it was right, conceding the point of law above stated to be correct, to admit the evidence.

The judgment is affirmed.