Sorrell v. Craig

ORMQND, J. The plea relied -on in this cause, as a bar to the action, was clearly defective. A contract under seal, may be discharged by a parol executed contract, but an executory parol contract, cannot be pleaded in bar to one under seal. [1 Chitty on Pleading, 484, and cases cited; see also Barelli v. O’Conner, 6 Ala. Rep. 617, and cases cited; and McVoy v. Wheeler, 6 Porter, 201.] The plea is also bad for uncertainty, for want of an averment of the number of horses, cattle and hogs which died, or were lo.st, without fault or neglect on his part. This was a matter peculiarly within the knowledge of the defendant, and which he was theforo bound to state with precision. The allegation that a large number of the horses, cattle and oxen, died or were lost, without fault or neglect on his part, presented no point upon which issue could be taken, and the demurrer to the plea was properly sustained for this cause, as well as for the reason previously assigned. [569] The Court did not err in excluding the will of the father of the defendant from the jury. The inference attempted to be derived from it, was, that as the general scheme of the will, was an equal division amongst all the children, and as the testator had charged some of the children, with the debts they owed him as part of their portion, and had omitted all mention of the claim under this covenant, that it was the intention of the testator to release all claim to this demand. This inference, it appears to us was unwarranted. The general rule is, that a debt is not released by a bequest to the debtor, the evidence of the debt remaining uncan-celled, but to produce that result, there must be evidence of a clear intention to release the debt. The law is thus stated by this Court in Sorrlle v. Sorrlle, 5 Ala. Rep. 248, where the question arose upon this will. The inference therefore arising from the will, would seem to be the reverse of that for which it was introduced. At all events, ho implication such as that which it was intended the jury should make, could be deduced from the mere silence of the testator, as to this debt, the evidence of which it appears remained uncancel-led amongst his papers, and the will was therefore properly rejected. There was no necessity for the plaintiff to prove, under the state of the pleadings, that he made a demand of the articles sued for, previous to bringing the suit. When a certain time, as in this case, is fixed for the delivery of ponderous articles, no demand is necessary to put the defendant in default, though he may defend himself against the action, by proving that he was ready and willing at the time and place appointed by the contract, to deliv-erthem. [Thackston v. Edwards, 1 Stewart, 524; McMurray v. The State, 6 Ala. Rep. 326.] No plea of a readiness to deliver was interposed. The plea of tender is not an equivalent plea, but if it was, the burthen of proving it was assumed by the defendant. • From this examination it appears, that there is no error in the record, and the judgment must be therefore affirmed.