Hunt v. Barfield

DARGAN, C. J. The objection to the recovery in this case is, that the consideration of the note sued upon had partially [119] or totally failed; we must therefore look to the evidence showing the consideration, and ascertain whether there has been a. failure in whole or in part. In 1846, T. Mather, the payee of the note, and Hunt entered into a written agreement, whereby it was agreed that Hunt should buy of Mather a cotton gin, of a description specified in the contract. But if the gin did •not perform well, when started, Hunt was to give as early information as he could to Mather, who was to cause it to perform well, or supply him with another that would. It was further agreed, that as soon as the gin was started and performed well, Hunt was to give his note to Mather for one hundred and fifty dollars, payable on the first day of January, 1848. The evidence further shows that in pursuance of this agreement, Mather delivered to Hunt a gin in the month of October, 1846, and in November thereafter, the agent of Mather called on Hunt for the note. Hunt told the agent that he was not satisfied with the gin, that it made a fine sample, but ginned too slowly, and objected to giving his note. The agent examined the gin, and saw that it did not perform well, but ginned too slowly, but he could not alter it at the plantation of Hunt, and thought it would have to be sent to Mather’s shop, which was about eighty miles distant. The agent, not wishing to return again for the note, induced Hunt to execute it, telling him that he would see Mather, and let him know the condition of the gin. The agent saw Mather in two or three months afterwards, and informed him of its condition, but it does not appear that any thing more was said or done in reference to the gin, until the spring of 1848, when another agent of Mather called on Hunt, who told him that the gin did not perform well, and some part of it was broken, and therefore he could not use it. He further stated, that Mather ought to have the gin put in good order. The agent saw Mather afterwards, and told him what Hunt had said. Mather then requested his agent to say to Hunt, that if he would send the gin to the shop of Mr. Dubois at Greensboro’, which was about forty miles distant from the residence of the defendant, that he would have the gin put in good order. The agent told this to' Hunt, who agreed to do it, but never has carried the gin to the shop of Mr. Dubois, and it has never been repaired. It is contended by the counsel for the plaintiff, that the failure of Hunt to carry the gin to Dubois’ shop discharged Mather [120] from bis obligation to repair it, so as to make it perform well; but we cannot yield our assent to tbis proposition. True it is, that a parol agreement which has been executed will discharge an antecedent contract when so intended by the parties, whether such prior contract rests in parol, or is under seal.—Wallis v. Long, 16 Ala. 738; Barville & Martin v. Conner, 6 Ala. 617, and cases there cited. But the general rule is, that a subsequent parol agreement will not discharge a prior written contract, unless such agreement has been executed.—Adams v. Nicholas, 19 Pick. 275. I will not say, however, that a parol executory agreement can in no case be considered as a waiver- or a discharge of a written contract; but if such executory agreement be founded on no new consideration, and has been productive of no injury to the party who was to perform it, I cannot see how it is to discharge him from the performance of an absolute and perfect obligation. Mather, the payee of the note, was absolutely and unconditionally bound to repair the gin, before Hunt agreed to carry it to the shop of Dubois ; and Hunt’s failure to do so, (his promise being founded on no new consideration) cannot release Mather from the performance of his part of the original contract. Mather therefore has not fully complied with the agreement which formed the consideration of the note, and consequently, there has been a partial failure of consideration, and the plaintiff can only recover the amount of the note with interest thereon, less .the sum that it would have cost to put up the gin in good repair at the time it was first started. This being, in our opinion, the rule that must govern the amount of the recovery,it follows that the court erred in the instructions given to the jury, and the judgment must be reversed, and the cause remanded.