Cole v. Justice

COLLIER, C. J. The promise by Bullock to Smith to allow as a payment on the note in question, the amount of the judgment against Douglass if he would'discharge it, though it may have been made to him alone, enured to the defendant, his surety. If a principal obtain a claim against his creditor, which he may use as a set off, in a several action against a surety, the latter may with, the assent of his principal, avail himself of the set off, ás a. defence to the action.” This point was so ruled in Winston v. Metcalf, 6 Ala. Rep. 756. Here the right of the surety to set up as a defence, a matter to which the principal contributed, is even less questionable. The beneficial plaintiff agreed, to allow the money advanced by Smith as a payment; and eo instanii upon the advance being made, the note was thus far extinguished, and was not enforceable, against either the principal or his surety. Such a promise by Bullock, is not obnoxious to the statute of frauds, as supposed in argument. It is not an undertaking to answer for the debt or default of ”another; but it is. á direct and original promise to pay Smith if he would satisfy the judgment against Douglass. The engagement, became absolute by the performance of the condition, viz: the "payment, of the money. • In Dunn, use, &c. v. White & McCurdy, 1 Ala. Rep. N. S. [796] 645, we held that the vendee of land has the right to extinguish outstanding incumbrances, and charge the vendor with the amount thus paid to perfect his title, if the vendor has entered into a covenant with him, that the estate is free from incumbrance. Yet, although such was the law, the amount paid to extinguish an in-cumbrance, could not be allowed as a set off in an action for the purchase money, nor would it avail the defendant at law, under the plea of failure of consideration. The case here cited, is decisive to show, that the last charge given cannot be supported. The judgment is consequently reversed, and the cause remanded.