Dexter v. Ohlander

MoCLELLAN, J. The plaintiff, who is appellee here, had judgment below on an obligation of the appellant (hereinafter referred to as the defendant), which was evidenced by the following writing: “Montgomery, Ala., Aug. 27th, 1887. I have received from Mr. A. Ohlander a relinquishment to his lease with L. Lawall, for consideration of one hundred and fifty dollars, to be paid him in ten days, and use of the premises until Nov. 12th, 1887, free of x’ent.” Signed, “R. P. Dexter — 268 — The relinquishment here referred to is in the following terms: “In consideration of one hundred and fifty dollars, to be paid to me within the next ten days, and to allow me to continue the use of the store-house on the northwest corner of Dexter avenue and Bainbridge street, for the use of storing furniture, until Nov. 1st next, free of charge, I agree to relinquish and give up all my right and claim to above mentioned store-house, that I have by virtue of a five years lease with Mr. L. Lawall. Montgomery, Ala., August 27, 1887.” Signed, “Aug. Ohlander." The complaint failed to aver that either the lease or plaintiff’s relinquishment or surrender of it was in writing, and demurrers were interposed to each of its two counts, on this ground. These demurrers were properly overruled. Granting defendant’s position, that both of these contracts were required by the statute of frauds to be in writing, and conceding that the declaration is upon the lease and the relinquishment of it, the authorities are uniform, that the fact need not be alleged, but is a matter which properly arises on the proof.—Perrine v. Leachman, 10 Ala. 140; Rigby v. Norwood, 34 Ala. 134; Martin v. Wharton, 38 Ala. 637. It was further demurred, that the complaint did not show such an interest or estate in the premises covered by the lease in the defendant, as would support an assignment, relinquishment, or surrender of it. This went to the question of what the defendant received for the liability he incurred —the consideration for his contract — and is also a question arising on the evidence. The second count sets out the written obligation copied first above, as in part the foundation of the cause of action; and was demurred to, on the ground that no promise of the defendant to pay the sum therein specified was shown. It is not essential that there should have been an affirmatively expressed promise to pay. It is sufficient if words are used which would be tantamount to a promise, express or implied. Rice’s Adm'r v. Rice, 68 Ala. 216. The instrument might have been declared on as a promissory note, though differing in some respects from the form usually employed. Story Prom. Notes, § 14; Russell v. Whipple, 2 Cowen, 536; Wardwell v. Sterne, 22 La. An. 28. The obligation imports an absolute promise to pay a sum certain to the plaintiff within a given time. The special plea undertook to set up a defense resting upon a condition to its obligatory force, of which there is no hint in either of — 269 — the writings set out. This was in effect to say, that the contract as written was not the contract as agreed upon between the parties; and involved the necessity of interposing the defense by a sworn plea, which was not done. Plaintiff’s demurrer to this plea was correctly sustained.— Code, § 2770; Lazarus v. Shearer, 2 Ala. 718; Campbell v. Larmore, 84 Ala. 499. The relinquishment of the plaintiff, and the defendant’s obligation to pay therefor, having been, as the evidence shows, executed on the same day, each as the consideration of the other, constitute one transaction, and are to be construed as one and the same contract.—Carr v. Hays, 25 Cent. Law Journ. (Ind.), 32; Herbst v. Low, 65 Wis. 316; St. L. & I. M. R. R. Co. v. Brider, 45 Ark 17. In the interpretation of the agreement thus evidenced, it was competent for the court below to take such oral testimony as tended to put it in the position, and give it the point of view occupied and had by the parties themselves in the execution of the contract. — =T. & C. R. R. Co. v. E. Ala. R. R. Co., 73 Ala. 426; Griel v. Lomax, 86 Ala. 132. Upon this principle, evidence was properly admitted to the effect, that the plaintiff was in possession of a certain house and lot under what was nominally a five years lease from Lawall; that both the defendant and Lawall desired to free the lot from this lease, and to induce the plaintiff to surrender the possession, to the end that it might be sold to a syndicate for the Methodist Episcopal Chuch, and possession given under the sale; and that the defendant acted in the premises as the agent of Lawall and of the syndicate, either or both. All of these facts served to enlighten the court as to- the intent of the parties, and to aid in its construction of their agreement, by advising it of their positions towards each other and the property, and of their objects and purposes. So advised, it was for the court to determine what was meant by the two writings which constituted the contract. But here the office of parol testimony ceased. It could not be looked to to import terms and conditions into the writings which were repugnant to the expressions of the papers themselves, nor to vary, add to, or take from the language employed, as construed in the light of attendant circumstances; and the court properly excluded the evidence offered by the defendant, to the effect that his liability was to depend on the consummation of a sale of the property which was then imminent. Authorities supr; Pollard v. Pollard, 28 Ala. 321; Chambers v. Ringstaff, 69 Ala, 140; Griel v. Lomax, 86 Ala. 132. — 270 — When reference is thus had to the situation of the parties, and the ends they intended to accomplish, it becomes apparent that the real character of the lease, under which the plaintiff held, does not enter into the issue. Whether it was valid or invalid; or really, as well as nominally, for five years, or for a month less than that term; or, by reason of the title being in the wife of the nominal lessor, was efficacious for one year instead of five, are immaterial inquiries. The plaintiff had possession under it, and claimed as for a term of five years; it was treated and described in the negotiations, and in the writings in which these culminated, as a lease for five years; it was contracted to be relinquished, not as a valid lease for any period of time, but specifically as a lease which the plaintiff had “from Mr. L. Lawall,” which lease on its face designated a term of five years; and it was this lease, regardless of its latent invalidity, or of any infirmity dependent upon extraneous facts, which would operate to defeat the term, in whole or to any less extent, and the plaintiff’s possession under it, which stood in the way of the contemplated sale and delivery of possession to the church; it was the “right and claim” of the plaintiff under this paper, whatever its legal effect, the relinquishment of which was essential to the ends in view, induced the contract, and formed a sufficient consideration for the defendant’s liability.—-Sykes v. Chadwick, 18 Wall. 141. So far as the abstract rights of the parties under the writings are concerned, we regard it as immaterial, whether the plaintiff’s relinquishment was technically a surrender of the lease, or an assignment to the defendant, or merely a general divestiture of his rights. And if it be considered an assignment to the defendant, it is not important whether its effect was to vest the lessee’s rights in the assignee. If the plaintiff’s testimony is true, the defendant acted as Lawall’s agent in the transaction; and in that view, the relinquishment was an effort to surrender the lease. If defendant’s version is the correct one, he represented the proposed purchaser and, in some sort, Lawall also, as the latter was privy to the arrangement, and was to pay half the sum plaintiff was to receive. Whatever the real fact in this connection may be, it seems assured, from every point of view, that the whole purpose and effort of the defendant was to get the lease out of the way, so that a sale might be effected, either by him, as the agent of the owner, or to him as the agent, as well as one of the syndicate; and that the — 271 — contract which he induced the plaintiff to enter into had the desired effect of removing the outstanding lease and possession under it, out of the path of the pending negotiations. What the removal of these obstacles availed the defendant, is beyond the inquiry as to the status and rights of the parties under the writings they respectively executed. The obligation of Dexter is supported by considerations of detriment to Ohlander, and also by the facts that the extinguishment of the lease and the abandonment of the possession under it, whether the defendant was eventually benefitted thereby or not, were the things which he contracted and agreed to pay for, and which he, at the time, conceived to be valuable to him as elements of success in the pending sale. Therefore, to the cause of action shown by the proof it was not essential that plaintiff should have technically surrendered the lease to defendant, or should have assigned it to him, or relinquished it in the sense of vesting his rights under it in the defendant; nor was it necessary for the plaintiff to have surrendered the possession to defendant. Yet, the plaintiff, in the first count of the complaint, alleges, and thus assumes the burden of proving, that he agreed to surrender, and did surrender the lease to the defendant; and in the second count, it is negatively alleged that the contract there declared on required a surrender and delivery of possession to the defendant, and that plaintiff, in compliance with this contract did so surrender possession to Dexter. The plaintiff thus took upon himself to prove these facts, which we think are not material to his rights in the abstract, but only as he has asserted them. If he failed to prove a surrender of the lease to the defendant, he is not entitled to recover under the first count; if he failed to prove a surrender of the possession to defendant, he was not entitled to recover under the second count; and- if the jury had found that he had surrendered neither the lease nor the possession to the defendant, he was not entitled to recover at all. — A. G. S. R. R. Co. v. Mt. Vernon Co., 84 Ala. 173; M. & E. Railway Co. v. Culver, 75 Ala. 587. The special charges asked by the defendant in this connection were bad, because they did not go to the whole case, and were not, in terms, confined to that part of the case to which they severally applied. Thus, charge No. 2 demands a verdict for the defendant generally, if the jury should find that there had been no surrender of the lease, when, under the second count, proof of such a surrender was not neces — 272 — sary to a recovery. Charges No. 4 and 5, on the other hand, base defendant’s right to a verdict, under both counts, on a failure to prove delivery of possession to him, notwithstanding plaintiff, as we have seen, was entitled to recover on the first count without surrendering possession to defendant. Charge No. 8 appears to have been an effort to avoid the infirmities just noted in the other requests for instructions. Its language is: “If the jury find from the evidence that Ohlander did not surrender the lease and the possession of the property to Dexter, then they must find for the defendant.” This charge is open to the criticism, that it would have denied the plaintiff a verdict, unless he proved the surrender of both the lease and the possession, although, under either count, his right to recover depended on proof of only one of these facts. That part of the court’s general charge, which asserts that, “In this case, it makes no difference whether plaintiff surrendered possession of the premises to the defendant or to any one else,” goes to the other extreme; it is too broad. Had its application been confined to the first count, it would have been unobjectionable; but it goes to both, and obviates the necessity which the plaintiff was under to prove delivery of possession under the second count. Perhaps, it may be considered as misleading only, and, if so, defendant should have asked an explanatory charge limiting its operation. This we deem unnecessary to decide, however, as the case must be reversed on another ground, and this question is not likely to occur on another trial. The affirmative charge requested by the defendant should have been given. There is no evidence in support of the plaintiff’s averment of a surrender of the lease, by which, construing the pleadings most strongly against him, he must be held to have alleged a technical surrender. This is fatal to recovery on the first count. And there is no evidence of a surrender of possession to the defendant, which is fatal to a recovery under the second count. The affirmative charge covered both points of course, and its refusal was error, for which the judgment must be reversed. The undertaking on its face was the individual contract of R. P. Dexter. In the transaction, he may have acted as the agent of the syndicate, and this fact may have been known to the plaintiff; yet he may have exceeded his agency (indeed, his own testimony shows that he did exceed the powers conferred upon him by his associates, in that they only agreed to a conditional promise, whereas the promise — 273 — be made was an absolute one), and in tbat event be would be personally liable. Tbe charge requested on tbis part of tbe case pretermitted inquiry as to excess of authority, and for this reason, if not on other grounds, was properly refused.—Drake v. Flewellen, 33 Ala. 106; Bell v. Frazer, 85 Ala. 215. There was no inquiry submitted to the jury, upon which the evidence offered by the plaintiff, to the effect that the Methodist Church was, at the time of trial, in possession of the property out of which this controversy arose, could have legitimately shed any light. It was impertinent, and should have been excluded. Reversed and remanded.