GIBBONS, J.
1. The first question of law that arises upon the pleadings, in this ease, is, whether a party, who has giren a note payable at a particular day, upon the consideration that the payee agreed to perform certain services for him, but without any time being fixed when the services should be performed, can, when the payee is in no default, but able, readjr, and willing to comply with the contract on his part, defeat a recovery on the note, on the ground, that the payee has not yet rendered the entire services contemplated by his agreement. The simple statement of this question suggests the answer. He cannot. We do not now deem it necessary to enter into an argument to show the reasons why he cannot. These reasons, and the numerous authorities upon this subject, are familiar to the profession. It is sufficient to say, that the consideration of the note being the agreement of the payee to perform the services, and the payment of the money not being-made to depend upon the performance as a condition precedent, and the payee being in no default, the note remains obligatory upon the maker. We do not mean to say, that the maker of a note may not show a total or a partial failure of consideration. He undoubtedly can. But the above question does not involve a failure of consideration, but simply a non-performance of the services contemplated by the agreement, which was the consideration of the note, without any default or omission on the part of the payee. This is not a failure of consideration, and the agreement remains mutually as binding upon the ¡parties as it ever was.
If the payee of the note had failed or refused to perform the services stipulated, that would be a failure of consideration ; but until he does some act, or omits to perform some duty to which he was bound, and which puts him in default, the consideration of the note cannot be said to have failed in any respect.
This question being thus settled, necessarily disposes of the demurrers to the plaintiffs’ replication to the second plea, and to the defendant’s rejoinder to the same replication; and it follows as a necessary consequence, that the court decided the law correctly in overruling the demurrer to the former, and in sustaining that to the latter.
2. It is a principle of law equally well settled that a party, [805]*805cannot introduce parol proof, to materially alter or vary a written agreement. West & West v. Kelly’s Ex’rs., 19 Ala., 358. If tbe contract is not perfect in itself, or, in the language of C. J. Dargan in the case above cited, “if it be apparent that the instrument in writing contains but a part of the agreement entered into by the parties, then parol proof may be received to prove the entire contract; otherwise the contract could not be brought before the court. But the parts of the agreement proposed to be proved by parol, must not be inconsistent with, or repugnant to the intention of the parties, as shown by the written instrument; for, to receive parol proof of a part not reduced to writing, which is directly repugnant to the intention of the parties as expressed in the written instrument, would at once annul the rule that parol evidence cannot be received to contradict or vary the terms of a written agreement.” See also Long, Admr., v. Davis, 18 Ala., 801.
Let us apply these principles then to the fifth plea. It states, in addition to the matter contained in the rejoinder to the plaintiffs’ replication to the second plea, that at the time the note was executed it was the understanding of the parties that Walker would be tried at the next term of the Circuit Court, and that the note should become payable at the time that the said Walter should be tried. We understand the meaning of the plea to be, that the note was not to become payable until the services contemplated by the agreement were rendered. If this is the meaning of it, (and it is the only one we can attach to it) it is repugnant to the face of the note, and makes a materially different contract between the parties. This the law will not permit. If the contract was, in effect, what the plea states it to be, it was the misfortune of the party that it was not correctly expressed in the written agreement, but a court of law has no power to reform it. The plea is bad, and the demurrer to it wás correctly sustained.
3. The gist of the sixth plea is, that Walker has not been tried in consequence of his insanity, and that the guardian ad litem had tendered to the plaintiffs the sum of fifty dollars, averring that to be a reasonable compensation for the services which they had rendered in the prosecution pending against the said Walker, and had demanded of the plaintiffs a rescis[806]*806sion of the contract, and that tbis offer was refused by tbe plaintiffs; but in consequence thereof the plea claims that the contract is rescinded. Waiving all questions as to the formality of this plea, and about which we express no opinion, we only deem it necessary to say, as to the subject matter of it, that as it requires in law two parties to make a contract, so it requires two parties to rescind one. It is true, the law will sometimes rescind a contract in favor of one party, on account of the default or misconduct of the other; but when he who seeks a rescission can allege no default or misconduct against the other party, he cannot at his election annul it. It requires the consent of both parties to rescind, as it did to make it. The demurrer to the sixth plea was therefore properly sustained.
-1. It is insisted that the court erred in allowing the witness Austin, introduced by the plaintiffs, to testify as to the condition of Walker seventeen days after the execution of the note. The bill of exceptions shows, that the defendant introduced testimony tending to show that the said Walker was insane “ at, after, and before the time of the execution of the said note.” This testimony, we presume, was offered under the plea of non est factum, seeking to avoid the note on the ground of insanity; and we think it clear thal the testimony of Austin was admissible, as tending to rebut the testimony of the defendant on this issue. 2 Greenleaf Ev., § 371 ; McLean v. The State, 16 Ala., 672; McAlister v. The State, 17 Ala., 434. We do not think that seventeen dnys after the execution of the note was too remote to render the testimony irrelevant.
5. The defendant below requested the court to charge the jury, that if they believed certain evidence set out in the bill of exceptions, they must find for the defendant. The court refused the charge, and this is also assigned for error. On looking at the evidence on which this charge was prayed, it will be found to be substantially the facts set out in the sixth plea. This plea was demurred to, and the demurrer was sustained. There was no issue before the jury authorizing this evidence to be received, and we have already passed upon the legal effect of the facts alleged in this plea. The charge was properly refused by the court.
[807]*8076. It is also assigned for error that tbe court below appointed a guardian ad litem for tbe said Walker. Mr. Chitty says, “an idiot should also appear in person, and it is said that any one who can make a better defence, shall be admitted to defend for him; but a lunatic, or one who becomes non compos mentis must appear by guardian, if he be within age, and by attorney if of full age.” 1 Chitty’s Pl., 469 ; see also 2 Saund., 333, note 4, 335; Bacon’s Abr., title, Idiots and Lunatics.
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GIBBONS, J.
1. The first question of law that arises upon the pleadings, in this ease, is, whether a party, who has giren a note payable at a particular day, upon the consideration that the payee agreed to perform certain services for him, but without any time being fixed when the services should be performed, can, when the payee is in no default, but able, readjr, and willing to comply with the contract on his part, defeat a recovery on the note, on the ground, that the payee has not yet rendered the entire services contemplated by his agreement. The simple statement of this question suggests the answer. He cannot. We do not now deem it necessary to enter into an argument to show the reasons why he cannot. These reasons, and the numerous authorities upon this subject, are familiar to the profession. It is sufficient to say, that the consideration of the note being the agreement of the payee to perform the services, and the payment of the money not being-made to depend upon the performance as a condition precedent, and the payee being in no default, the note remains obligatory upon the maker. We do not mean to say, that the maker of a note may not show a total or a partial failure of consideration. He undoubtedly can. But the above question does not involve a failure of consideration, but simply a non-performance of the services contemplated by the agreement, which was the consideration of the note, without any default or omission on the part of the payee. This is not a failure of consideration, and the agreement remains mutually as binding upon the ¡parties as it ever was.
If the payee of the note had failed or refused to perform the services stipulated, that would be a failure of consideration ; but until he does some act, or omits to perform some duty to which he was bound, and which puts him in default, the consideration of the note cannot be said to have failed in any respect.
This question being thus settled, necessarily disposes of the demurrers to the plaintiffs’ replication to the second plea, and to the defendant’s rejoinder to the same replication; and it follows as a necessary consequence, that the court decided the law correctly in overruling the demurrer to the former, and in sustaining that to the latter.
2. It is a principle of law equally well settled that a party, [805]*805cannot introduce parol proof, to materially alter or vary a written agreement. West & West v. Kelly’s Ex’rs., 19 Ala., 358. If tbe contract is not perfect in itself, or, in the language of C. J. Dargan in the case above cited, “if it be apparent that the instrument in writing contains but a part of the agreement entered into by the parties, then parol proof may be received to prove the entire contract; otherwise the contract could not be brought before the court. But the parts of the agreement proposed to be proved by parol, must not be inconsistent with, or repugnant to the intention of the parties, as shown by the written instrument; for, to receive parol proof of a part not reduced to writing, which is directly repugnant to the intention of the parties as expressed in the written instrument, would at once annul the rule that parol evidence cannot be received to contradict or vary the terms of a written agreement.” See also Long, Admr., v. Davis, 18 Ala., 801.
Let us apply these principles then to the fifth plea. It states, in addition to the matter contained in the rejoinder to the plaintiffs’ replication to the second plea, that at the time the note was executed it was the understanding of the parties that Walker would be tried at the next term of the Circuit Court, and that the note should become payable at the time that the said Walter should be tried. We understand the meaning of the plea to be, that the note was not to become payable until the services contemplated by the agreement were rendered. If this is the meaning of it, (and it is the only one we can attach to it) it is repugnant to the face of the note, and makes a materially different contract between the parties. This the law will not permit. If the contract was, in effect, what the plea states it to be, it was the misfortune of the party that it was not correctly expressed in the written agreement, but a court of law has no power to reform it. The plea is bad, and the demurrer to it wás correctly sustained.
3. The gist of the sixth plea is, that Walker has not been tried in consequence of his insanity, and that the guardian ad litem had tendered to the plaintiffs the sum of fifty dollars, averring that to be a reasonable compensation for the services which they had rendered in the prosecution pending against the said Walker, and had demanded of the plaintiffs a rescis[806]*806sion of the contract, and that tbis offer was refused by tbe plaintiffs; but in consequence thereof the plea claims that the contract is rescinded. Waiving all questions as to the formality of this plea, and about which we express no opinion, we only deem it necessary to say, as to the subject matter of it, that as it requires in law two parties to make a contract, so it requires two parties to rescind one. It is true, the law will sometimes rescind a contract in favor of one party, on account of the default or misconduct of the other; but when he who seeks a rescission can allege no default or misconduct against the other party, he cannot at his election annul it. It requires the consent of both parties to rescind, as it did to make it. The demurrer to the sixth plea was therefore properly sustained.
-1. It is insisted that the court erred in allowing the witness Austin, introduced by the plaintiffs, to testify as to the condition of Walker seventeen days after the execution of the note. The bill of exceptions shows, that the defendant introduced testimony tending to show that the said Walker was insane “ at, after, and before the time of the execution of the said note.” This testimony, we presume, was offered under the plea of non est factum, seeking to avoid the note on the ground of insanity; and we think it clear thal the testimony of Austin was admissible, as tending to rebut the testimony of the defendant on this issue. 2 Greenleaf Ev., § 371 ; McLean v. The State, 16 Ala., 672; McAlister v. The State, 17 Ala., 434. We do not think that seventeen dnys after the execution of the note was too remote to render the testimony irrelevant.
5. The defendant below requested the court to charge the jury, that if they believed certain evidence set out in the bill of exceptions, they must find for the defendant. The court refused the charge, and this is also assigned for error. On looking at the evidence on which this charge was prayed, it will be found to be substantially the facts set out in the sixth plea. This plea was demurred to, and the demurrer was sustained. There was no issue before the jury authorizing this evidence to be received, and we have already passed upon the legal effect of the facts alleged in this plea. The charge was properly refused by the court.
[807]*8076. It is also assigned for error that tbe court below appointed a guardian ad litem for tbe said Walker. Mr. Chitty says, “an idiot should also appear in person, and it is said that any one who can make a better defence, shall be admitted to defend for him; but a lunatic, or one who becomes non compos mentis must appear by guardian, if he be within age, and by attorney if of full age.” 1 Chitty’s Pl., 469 ; see also 2 Saund., 333, note 4, 335; Bacon’s Abr., title, Idiots and Lunatics. In the case of Buchanan v. Rant, 2 Monroe, 114, the court decided that lunatics within age must appear by guardian; those of mature age by attorney. To the same effect also is the case of Amos v. Taylor, 2 Brevard, 20. Ou the other hand, in Allison v. Taylor, 6 Dana, 87, it was held that a judgment against a lunatic, in a case where the process was served upon him alone, and the judgment rendered by default, was not void, although tbe court intimate that such a judgment would be reversed on error, because the committee man was not made a party.
The record in this case shows, that the defendant pleaded both by guardian and attorney; the language is, “the said George Walker by his guardian ad litem, Daniel M. Martin, and by attorney, comes and defends, &c.” The question then would seem to be narrowed down to this: does the simple appointment by the court of a guardian ad litem, although the defendant still pleads by attorney, amount to error? We have no hesitation in saying that it does not. We do not wish, however, to be understood as expressing an opinion upon a case where the record did not show that the lunatic pleaded by attorney ; we limit our decision to the jjrccise case presented by the record. Besides, the record in this case would indicate that the guardian ad litem was appointed at the instance of the defendant’s attorney; and it never could be tolerated, that he could be heard here in assigning for error that which he had himself caused to be done below; this would be to permit a party to take advantage of his own wrong.
7. It is insisted, in the last place, that the court erred in rendering judgment against the lunatic. This objection is in some measure answered by what we have said in reference to the last noticed assignment of error. We do not see how the judgment could have been rendered against any party other [808]*808than the lunatic. It was his debt; he had the capacity, as we have seen, to appear in court by attorney, and the legal title to his estate was still in him. The guardian that was appointed to take charge of his affairs did not, like an administrator, take the legal title to any of the property or assets that came to his hands. Cameron v. Pottinger, 3 Bibb, 11; Crane v. Anderson, 3 Dana, 119. The lunatic then was the only party against whom judgment could have been rendered. Clarke v. Dunham, 4 Denio, 262.
We find no error in the record, and the judgment is consequently affirmed.