Dillworth v. Holmes Furn. & Vehicle Co.

PELHAM, P. J. (1) Where it is manifest from the record that both parties have tried a cause to its conclusion, as if issue had been joined upon a special plea, although the record does not *344 disclose such special plea and contains no other plea than the general issue, the appellate court will review the ruling of the trial court as if the issue had been specially pleaded. — Richmond & Danville R. R. Co. v. Farmer, 97 Ala. 141, 12 South 86; Gainer v. Southern Ry. Co., 152 Ala. 186, 44 South. 652; Snellgrove v. Evans, 145 Ala. 600, 40 South. 567; Planters’ & Merchants’ Independent Packet Co. v. Webb, 156 Ala. 551, 46 South. 977, 16 Ann. Cas. 529; American Sales Book Co. v. Pope & Co., 7 Ala. App. 304, 61 South. 45. (2) The title retention contracts set up in special pleas 12 and 13 were introduced in evidence by both parties; it was shown without objection that they were never surrendered to Parker; that the property described therein was retaken by the plaintiff prior to the beginning of the action; that it was not returned to Parker; that it was sold at public auction for $50; and it also appears that the question of consideration was the subject of a great part of the testimony, and that the guaranty contract was not executed contemporaneously with the execution of the title retention contracts. It appears, therefore, that the defendant had the full benefit of the matters set up in special pleas 12 and 13, and the court committed no reversible error in striking these pleas. (3-5) It is insisted by the appellant that the contract of guaranty was within the statute of frauds in that the only consideration for the note and mortgage which were guaranteed was the original debt of Parker for the furniture, and that since the guaranty contract did not express the consideration therefor, the promise of the defendants to pay the debt of Parker is a nudum pactum, and the court erred in allowing the plaintiff to show by oral testimony that a portion of the consideration moving between the plaintiff and Parker at the time the note was executed and delivered was an extension of time for the payment of the original debt. It is true that a promise, verbal or written, to pay the debt of another, if not founded on a precedent liability, or a new consideration, will not support an action (Underwood v. Lovelace, 61 Ala. 155; Richardson Bros. & Co. v. Fields, 124 Ala. 535, 26 South. 981) ; and it is not permissible to take a contract without the statute of frauds by proving by parol testimony a valuable consideration, which the statute itself declares must be expressed in writing (Lindsay v. McRae, 116 Ala. 542, 22 South. 968; Merritt v. Coffin, 152 Ala. 474, 44 South. 622) ; but *345 in the present case the guaranty is written on the back of the note and mortgage and guarantees “the payment of the within note and mortgage, when the same is due;” and there was evidence that the guaranty was executed before the delivery and acceptance of the note and mortgage. When the present case was before the Supreme Court (183 Ala. 608, 62 South. 812), it was held that: “When the contract of guaranty, against the default, miscarriage, or failure to pay, of another, is executed before the delivery of the contract, the performance of which the guaranty is intended to assure, and though indorsed thereon the consideration moving between the principals to the principal contract and therein appearing on its face will support the contract of guaranty, no other consideration is necessary, and the contract is not within the statute of frauds.” (6-8) The note in the present case contained the words “value received,” which was the expression of a valuable consideration' in the face thereof, and is sufficient to place it without the statute of frauds. This was expressly held in Booth v. Dexter Steam Fire Engine Co., 118 Ala. 369, 24 South. 405; and in the same case the Supreme Court also held that in such cases, where a note does not express on its face for what it was given, it is permissible to show the real consideration. — Reader v. Helms, 57 Ala. 440; Flowers v. Steiner, 108 Ala. 440, 19 South. 321. The extension of the time of the payment of the debt was a sufficient consideration. — Leftkovitz v. First National Bank, 152 Ala. 521, 44 South. 613; Read, et al. v. Rowan, 107 Ala. 366, 18 South. 211. That which creates some benefit to the party promising, or causes some trouble, injury, inconvenience, prejudice, or detriment to the promisee, is a consideration which will uphold a promise. The court, therefore, did not err in permitting the plaintiff to show that a part of the consideration was the extension of the time of payment of the original debt; and there was evidence of other consideration moving between the plaintiff and Parker. The title retention contracts stipulated that the furniture should not be removed from the purchaser’s residence. A witness testified that the permission of the plaintiff that the furniture be moved to the country was to be obtained on the condition that the note and mortgage and guaranty were given. (9) It is urged by the appellant that the defendant was entitled to the general affirmative charge, on the theory that since the evidence showed without conflict that prior to the beginning *346 of the action the plaintiff had repossessed itself of the furniture which had been the subject of the title retention contracts, it had thereby deprived itself of the right to enforce the payment of the debt. That principle is not applicable to the present case, because it is shown that Parker, after he was in default on the title retention contracts, gave to the plaintiff a mortgage with a guaranty, which is the subject of this action, on the same property that had been covered by the title retention contracts, and it is expressly agreed in the mortgage that the plaintiff, after the maturity of the mortgage, for the payment thereof, may seize and sell the property therein described at public. auction, which was done, and it is shown that after crediting the proceeds from the collateral on the debt there was a balance due therein. The taking of the property by the plaintiff was not inconsistent with its action to recover the balance of the debt. Until the debt is satisfied, the mortgagee may seek at the same time, but by separate and independent proceedings, both the enforcement of the debt, and of the rights conferred by the mortgage. Until the debt is satisfied, there is nothing inconsistent in the pursuit of several remedies, concurrently or consecutively. The doctrines of election and waiver do not apply in such cases. —Tyson v. Webber, 81 Ala. 470, 2 South. 901; Tompkins v. Drennen, 95 Ala. 463, 10 South. 638; Logan v. Smith Bros. & Co., 9 Ala. App, 459, 63 South. 766. (10, 11) Charge B, besides being offensive to the rule against giving undue prominence to particular parts of the evidence, is covered by the given charges 1, 5, and 6. (12, 13) Charge D was properly refused, as the court is under no duty to give charges which instruct the jury that they “can look to” this evidence, or “may look to” that fact, because such charges are both argumentative and give undue prominence to the evidence or facts proposed to be thus brought specially to the attention of the jury. — Stone v. State, 105 Ala. 60, 17 South. 114; Jones v. State, 174 Ala. 85, 57 South. 36. (14, 15) Charge C was substantially covered by charges 4 and 5, which were given at the request of defendant, and besides, it has misleading tendencies. (16) Charge E pretermits the question as to whether the guaranty was executed before- or after the principal contract was delivered. “An instruction which attempts to cover the whole case, and authorizing a finding for one of the parties or the *347 other, according as the jury may determine certain facts, is erroneous, if it omits any material issue.” — L. & N. R. R. Co. v. Christian Moerlein Brewing Co., 150 Ala. 390, 43 South. 723. The judgment of the circuit court is affirmed. Affirmed.