Hembree v. Glover

McOLELLAN, J. — From all the evidence in this case w'e feel fully justified iii the conclusion, that B. F. Hembree acted throughout the transaction here involved as the agent of the appellant, Louisa Hembree. So considered, the agreement made by him as shown in the testimony of Coulson, to the effect “that Glover was to pay the costs of the suit of Kahn & Wolf, and others v. B. F. Hembree and Louisa Hembree, out of the money that Glover was to pay” for the land which he had purchased from Louisa Hembree in settlement of that case, and other matters of contention between 'them, was the contract of Louisa Hembree; and, being'subsequent in point of time to the written contract of February 21, 1887, is in novation thereof, and binding on the parties, although it changes the stipulations of the writing. — Coleman v. Siler, 74 Ala. 435. The new agreement, however, was not that Glover was to be credited by the amount of costs adjudged in the Kahn & Wolf case, but by the amount of such costs paid by him. It does not appear that he has paid any part of it. fie can not, therefore, reduce the recovery on the purchase-money note by setting up this new contract, because he has not met the conditions upon which alone his right to do so is made to depend by its terms; nor can he rely upon the judgment for the costs as a set-off, independently of the special contract, because he is not the owner of the demand he thus seeks to set off against the note in suit. — Jones v. Blair, 57 Ala. 457; Collins v. Green, 67 Ala. 211. Nor, in the present attitude of the matter, can he recoup the sum of these costs against the note, for the reason that they do not constitute a charge on the land, judgment having been allowed to go against a defendant who, it appears, has no interest in the property, and hence involving no element of damage to him as for a breach of warranty of the title he acquired. The decree of the Chancellor, allowing a credit on the purchase-money note to the extent of the judgment for costs,can not, therefore, in any v-iew be sustained. It is reversed, and the cause remanded.