Wright v. Bolling

CHILTON, C. J. 1. There was no error in admitting the testimony of McKellar, to which exception was taken. The fact that the witness has no recollection of selling the other articles, makes no difference. He made the charges, and knows that they are correct, for he charged nothing that was not sold and delivered. He might, therefore, very properly state, that he was satisfied and believed the items so charged were sold to Benson, although he could not remember them. — 1 Greenl. Ev. (5th ed.) § 437; 2 Ad. & El. 210; 2 Phil. Ev. (C. & H.) p. 551, note 421; Haig v. Newton, 1 Rep. Const. Ct. 423; ib. 373; Head v. Shaver, 9 Ala. 791. 2. A portion of the items charged on the books and proved by this witness were sold since the execution of the mortgage, but in 1853, and the defendant moved to exclude these; but the court allowed them to be proved, against his exception. This was correct. The proof tended to show a consideration for the note, and to rebut the proof offered by the defendant that the flour and ten gallons of whiskey were the only articles booked against Benson during the year 1853. The question is, not whether the mortgage shall stand as security for the items sold after it was executed, but whether the note is supported by a consideration. If Benson and Bolling agreed that the mortgage should secure the payment [265] for articles sold by the latter after its execution, and the note was given in part consideration of such sale, the note will be supported, whether the agreement for security would be carried out or not, unless Bolling was guilty of a fraud in inducing Wright to sign the note, by some false assurance that the mortgage would secure him, when it would not. Nothing, however, of this kind is alleged, nor is any question of the kind raised. The proof was relevant and proper. Its sufficiency and effect were matters for the jury, under the charge of the court. 3. It appears that the note and the endorsement upon the mortgage were executed at the same time — are parts of one transaction. Benson, the principal debtor and mortgagor, was present, and a party to the transaction, for he executed the note. Although, by the terms of the mortgage, the account for the year 1853, existing at the time of its execution, was alone secured by it; yet, when it was made, Benson said it was intended to operate prospectively, so as to secure the articles to'be purchased thereafter in 1853, as well as the book account then existing for that year. Under these circumstances, Benson executed his note for the amount which Bolling claimed to be covered by the mortgage, with the defendant Wright (we presume) as his surety ; and in consideration of Wright’s signing the note, Bolling, the mortgagee, transfers to him the mortgage, by the endorsement copied above. Now, if Wright signed the note with a knowledge of these facts, we know of no principle which would release him by reason of the fact that the mortgage only afforded him a partial indemnity. He has all the indemnity he contracted for, and has assumed to risk the compliance on the' part of Benson with what, to say the least of it, amounts to a moral obligation, resulting from his promise to allow the mortgage to operate as a security for goods to be purchased after its execution in 1853. If, however, on the other hand, Benson recognized this obligation, and gave his note to Bolling for all the account of 1853 as secured by the mortgage ; and as a part of the same transaction, the defendant Wright signed the note in consideration of the transfer df the mortgage to him, which transfer shows the note to be for the mortgage debt, — then, it is perfectly clear that both Benson and Bolling [266] are estopped from saying that the mortgage does not cover the entire demand. — See 1 Greenl. Ev. §§ 27, 184, 195, 196, 207, 208 ; Stone v. Britton, 22 Ala. 243-248, and cases there cited. In favor of the surety, the mortgage is to have the operation agreed upon by the creditor and principal debtor. If they have said that the note which they induced him to sign was for the mortgage debt, and that therefore the mortgage transferred to him was a subsisting indemnity in his hands to the amount of his liability which lie is induced to incur in consequence of such indemnity, as against them it must so operate, there being nothing upon the face of the mortgage, or of the endorsement of it, inconsistent with such operation. It will be observed, the question whether the mortgage is a subsisting security, arises solely between the parties themselves — no third person or creditor intervenes to contest its operation. 4. It follows from what we have said, that the proof objected to was not only proper, as rebutting the evidence of want of consideration offered by the defendant, but tended to build up an estoppel as against Benson ; giving to the mortgage the effect of securing the whole note in favor of the defendant, as announced by the affirmative charge given by the court. This charge, when considered with reference to the testimony set out in the record, on which it is based, is unexceptionable. ■. 5. The first charge prayed for by the defendant assumed that the mortgage only secured so much of the account of 1853, as had been contracted by Benson with Bolling before its execution, and that Wright was only liable for this sum. But we have shown that, under the proof, such was not its legal operation as respects the rights of this defendant. The charge pretermits the inquiry, whether the conduct and declarations of Benson and Bolling had not given to the mortgage a more extended operation,'and, under the facts disclosed by the record, was improper. 6. The last charge asked by. the defendant was properly refused, as it referred to the jury the legal question, whether what McKellar had said in reference to certain items charged by him on the books of Bolling, of goods sold to Benson by him, but the sale of which he-could not remember, was to be [267] considered as evidence. The charge sets forth the items which this witness states lie remembers to have sold, and says, “ if there has been no other evidence as to the account save the note in issue, then, if they believe all the balance of the evidence, they must find a verdict only for the amount of those articles, with interest from January,t1854.” This question of law the court had previously settled, and properly, adversely to defendant. Besides; all the proof is not set out, and there, may have been proof which would have justified a recovery aside from the evidence contained in the charge. It is impossible to say whether a charge, predicated upon the whole proof, and which may or may not bo proper as the proof may justify or forbid it, should have been given, in the absence of a knowledge of wlmt the proof was. In such case, the party excepting must set out all the proof. We are unable to perceive any error in the record prejudicial to the appellant. "We thus qualify our conclusion, because, if the charge given be erroneous, it is upon the assumption that the defendant took the mortgage, and signed the note, with a knowledge that only part of the note was secured by it; in which event, the mortgage would be no criterion of his liability, and consequently the charge could not by possibility have worked any injury to him. Judgment affirmed.