Miller v. Eubanks

SOMERVILLE, J. [1, 2] The real and decisive question presented by this appeal is whether defendant’s contract of guaranty is valid within the operation of the statute of frauds. “Where 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 [void] within the statute of frauds. But¡ where the guaranty is executed after the delivery of the principal contract, it is void under the statute of frauds unless the contract of guaranty is supported by a distinct consideration and that consideration is expressed in the contract of guaranty.” Citing the authorities. Dilworth v. Holmes Co., 183 Ala. 608, 62 South. 812. Here the consideration expressed in the principal contract — plaintiff's purchase of corporate stock — was ample to support it, and the guaranty was previously indorsed on the principal contract and with it delivered to plaintiff as a part of it. It is of no consequence that the writing expressed no limitation as to the amount of stock to be purchased by plaintiff. This affected merely the extent of the damage assured against, which could be, and was, made certain by parol proof. The complaint was not subject to the demurrer, the charges refused to defendant were properly refused, and on the evidence the jury properly found for plaintiff. [3] The only error committed by the trial court with respect to defendant’s special pleas was in not sustaining the demurrer to pleas 8 and 9 also. It was not necessary for plaintiff to put in evidence the letter from defendant to plaintiff, inviting him to consider the purchase of stock, but its admission was entirely proper, and could not have been prejudicial. We find no error in the record, and the judgment will be affirmed. Affirmed. ANDERSON, O. J., and MAYFIELD and THOMAS, JJ., concur.