Burkham v. Mastin

BBrICKELL, C. J. The tendency of our decisions is in support of the proposition, that if one person make a promise to another, for the benefit of a third, such third person may maintain an action upon the promise, though the consideration does not move from him.—Muckabee v. May, 14 Ala. 263; Mason v. Hall, 30 Ala. 599. It is well settled by our decis [126] ions, conforming to the universal construction of the statute of frauds, that a promise by one to j3ay the debt of another, made upon a new and valuable consideration beneficial to the promisor, is not within the- statute.—McKenzie v. Jackson, 4 Ala. 230; Lee v. Fontaine, 10 Ala. 755; Mason v. Hall, 30 Ala. 599. It is also well settled, that in declaring on promise required by the statute of frauds to be in writing, it is not necessary to aver the promise to have been made in 'writing. The distinction recognized by the authorities is, that when the contract would be good at common law, without writing, it is not necessary, in suing on it, to aver that it was written, although unless it is, a statute may declare it invalid. If, however, a statute creates the liability, or authorized the contract, and rendered a writing essential, then, in suing on it, the declaration must aver it is in writing. — 2 Brick. Dig. 30, § 221. These propositions sustain the sufficiency of the complaint, and relieve it from the objections made by the demurrer. The statute (R. C. § 2809) requires the amendment of pleadings, while the cause is in progress, “without costs and without delay,” unless injustice will thereby be done. The only limit to the right of amendment is, that a new cause of action must not be substituted, and there must not be a change of the form of action, or an entire change of parties. The court below very properly permitted an amendment of the complaint, so as to make its allegations of the terms of the contract correspond with the evidence. The plaintiff having assented to the contract. made with Ramsey, by which the defendant became liable to pay him for his services, it was competent for him and the defendant, at any time before a breach of the contract, to waive, dissolve or annul the agreement, or to change, modify or qualify its terms. The mutual agreement of the parties, is the only consideration necessary to support the new agreement. — 1 Brick. Dig. 334, § 233. Whether there has been such change or modification of the original contract, is a question of fact for the jury, and depends on the intention of the parties, to be collected from their acts and declarations when the change is supposed to have been made. The acceptance by a party of a portion of his demand against another, without any agreement to release the balance, is not a waiver of his right to insist upon the payment of such balance. —Trustees, &c., v. Walden, 15 Ala. 655. But if he accepts such partial payment, before a breach of contract — before the time of payment has arrived, and agrees to look to another source than the promisor for the payment of the balance, or that pay [127] ment of the balance shall depend on some contingency or event in the future, which may never happen, such new agreement is binding, and the original contract is waived or abandoned.—Johnson v. Sellers, 33 Ala. 265. If such agreement is made only to induce a performance, or to prevent a breach of the original contract, it would be without consideration and could not be supported. The charge requested by appellant was properly refused. "Without explanation, its tendency was to mislead the jury. It withdrew from the consideration of the jury the evidence tending to show that the plaintiff had not assented to a change of the original contract — had not assented that the payment of the balance of his wages should depend on a surplus of the proceeds of the sales of the crops remaining after paying the defendant his advances. It also withdrew from their consideration the evidence tending to show that the plaintiff only seemingly assented, to induce a partial performance of the original contract. The defense set up was also dependent on- the inquiry, whether the parties, by the supposed new agreement, really intended to vary or dissolve the original contract. If the charge had been given, the jury would probably have been led to suppose the facts referred to in it were conclusive evidence of such intention. These facts were all capable of explanation by evidence which satisfied the jury that the parties never intended to change or dissolve the original contract. There was evidence on this point, and its effect it was the province of the jury to determine. We find no error in the record, and the judgment must be affirmed.