Ware v. Dudley

PARSONS, J. As the second plea was withdrawn it may be left out of view, and we think the demurrers to the third and fourth pleas were correctly overruled. The questions of law arise upon the count on an account stated and the bill of exceptions. It does not appear that there was any exception or charge touching the contract or proposition of the defendant as proved. The whole evidence in regard to it is, perhaps, not stated in the bill of exceptions. We refer to the question whether the defendant was ever bound by his offer or agreement, as it appears by the evidence, so far as that is stated in the bill of exceptions, to have been made on condition, that the plaintiffs were to allow a set-off, which Dillard & Burns claimed,and it does not appear to have been proved that the plaintiffs ever allowed, or agreed to allow the set-off It was, therefore, a question if the defendant might not retract his offer at any time before it was acceded to by the plaintiffs. But with these questions, or with any question concerning the consideration of the defendant’s alleged agreement, we have nothing to do at present. If Brazill is the witness by whom the plaintiffs proved the alleged agreement of the defendant, and if he proved that it failed in consequence of any omission on the part of the defendant, then the defendant, on cross-examination, had a right to ask him if he did not, at a particular time and place, inform Gibson that the matter was not settled, because one of the plaintiffs refused to allow the set-off. And as Brazill denied this, the defendant had a right to prove it by Gibson- As already intimated, the bill of exceptions is obscure in this part, [746] and it does not even show that Gibson actually testified. We cannot reverse on this exception. In the next place, the court charged that the plaintiffs could not recover under the count for an account stated, without showing that there were matters of account between the parties, and the plaintiffs excepted. This charge implies that there must have been different items, or cross demands, or mutual transactions, and in this there was error. — Brown on Actions at Law, 548. In Porter v. Cooper, 1 C. M. & R. 387, &c., Alderson B. said, “ the cases have come to this, that an admission of a certain sum being due in respect of a demand for which an action would lie, is evidence sufficient to support an account slated.” It is not necessary, for the purpose of supporting this count, that the plaintiff should give- evidence of the several items constituting the account, but it is sufficient if he prove the account stated, for that is the cause ■of action. — Bartlett v. Emery, 1 T. Rep. 42. It is, therefore, evident that this charge threw the burthen of unnecessary proof upon the plaintiffs. This exception was not taken for a refusal to instruct. If it had been, the bill of exceptions’, should have stated so much of the evidence as was necessary to show that the charge ought to have been given. But the-charge was given against the plaintiffs, and as a proposition of law, we think it was erroneous. In this view of the question we must presume that there was some evidence in the cause which - called for instructions on the point, although such evidence may not appear by the bill of exceptions. — Peden v. Moore, 1 Stew. & Por. 71; Tharp v. The State, 15 Ala. Rep. 749. The court further charged, that under the issue formed on the replication to the plea of the statute of limitations of six years, which is the third plea, the enquiry for the jury was whether the whole of the note on the Gibsons had been collected by the defendant before this suit was commenced, and within six years of the time it was commenced, and there was an exception to this charge. The replication states that the defendant promised to pay to the plaintiffs the amount of their debt against Dillard & Burns “ out of the proceeds of said note executed by John & Andrew Gibson, when said note was collected,” and then the replication avers that the same was collected within six years [747] next before this suit was commenced. If we take the defendant’s promise to have been precisely as it is alleged in the replication, then it was a promise to pay when the note was collected, that is to say, the whole note; or more properly, the whole amount secured by it. Adhering to the letter of such a promise, this, we think, would b"e its effect. The whole amount of a note cannot be considered as collected, so long as a part remains unpaid. The full collection was the event on which the promise, taking it literally, was to be performed.. It may be that the defendant had received enough on the note to discharge the plaintiffs’ claim, but if it were his contract to pay when the whole.amount should be received, we cannot say that part was equivalent for this purpose to the whole. In saying that, we should assume the power of modifying the the contract of the parties, not of expounding it. It may be admitted that the promise, as stated in the replication, does not show the real intention of the parties with any certainty. This we feel and admit, and it follows that the promise in this respect is doubtful. But in all doubtful questions of the kind, the safe rule is to adhere to a literal construction, so long as that is not absurd or clearly unreasonable. It may have been the real intention of the defendant not to bind himself to pay until he received the whole amount of the note on the Gibsons. It appears by the replication that he owned a portion of the note himself — that the residue belonged to Dillard & Burns. It does not appear by the replication that he promised to pay their debt out of his portion. To avoid the necessity of this, it may have been his intention not to bind himself to pay until he had received the whole amount. Then he would certainly have enough without appropriating his own part — hence, a literal construction in this case is not clearly unreasonable. This appears to have been a parol promise, not in writing. We do not mean to say that the particular words that the parties may chance to use in such contracts must in all instances have their usual effect. That should never be when it would violate their clear intentions. In such cases, however, these contracts should be stated in the pleadings according, to the real intention of the parties, or, in other words, according to their legal effect. The evidence is another thing — if that proves that they employed words, which did not aptly ex [748] press tbeir meaning, they can be rejected or qualified, so as to carry out the real intention of the parties, But the replication in this case states a promise, the effect of which, as stated, was to pay after the defendant had collected the whole amount of the note, and it avers that he did collect it all. A pleading is taken most strongly against the party whose pleading it is: We think there is no error in this charge. The court qualified the charge, but as the qualification was favorable to the plaintiffs and not excepted to, it is not necessary to notice it. It is not necessary to decide the last exception. Let the judgment be reversed, and the cause remanded.