Booth v. Dexter Steam Fire Engine Co.

HARALSON, J. 1. If there was error in sustaining [377] the demurrers to defendant’s pleas, except the 6th and 7th, it was error without injury, since the defendant had the full benefit, under the 6th and 7th pleas, demurrers to which were overruled, of the defense attempted to be presented by the other pleas, demurrers to which were sustained. — Pelican Ins. Co. v. Smith, 92 Ala. 428; Owings v. Binford, 80 Ala. 421. 2. It was admitted on the trial, that the complaint and the pleas,- — 6 and 7, — were fully proved. The case was tried by consent, by the presiding judge, without a jury, with finding and judgment against defendant, on joinder of issue on replications 1, 3 and. 4 to plea 7, tc which replications, demurrers were overruled. 3. The plaintiff had a claim either against the defendant, J. 0. Booth, its treasurer, or against J. B. Trimble & Co., the bankers Avith whom he deposited the money. If the facts set up in the 7th plea are true, and constitute a good defense for defendant, it is upon the ground, that he deposited said funds in the bank, not as his OAvn money, but as the money of the plaintiff, Avith such distinguishing ear-marks, as that all Avho touched, them would be charged with notice of the trust, and the' cestui que trust, — the plaintiff, — could trace and assert its right to them. A deposit by defendant in his representative capacity, as gratuitous bailee for the plaintiff, under the facts set out in said plea, released him from personal liability for the safe keeping of the deposit, and rendered the bank liable on its failure to plaintiff. — Ditmar v. Bogle, 53 Ala. 169; Lehman v. Robertson, 84 Ala. 489, 491; Henry v. Porter, 46 Ala. 293; Story on Bailments, (8th ed.), §11. 4. The defendant seeks refuge from liability on the note, on the well recognized principle, that if a claim is Avitliout legal merit, and is clearly and absolutely unsustainable, at law or in equity, its compromise, and promise to pay it, whether its legal validity was knoAvn or not at the time, constitutes no sufficient legal consideration for a release or agreed compromise. — Thompson v. Hudgins, 86 Ala. 93; Russell v. Wright, 98 Ala. 654; Ernst v. Hollis, 86 Ala. 513; Prince v. Prince, 67 Ala. 565; Prater v. Miller, 25 Ala. 320. So far as the claim against defendant Booth is concerned, it is admitted by the replication, that, without [378] more than is set up in said ,7th plea, there could be no recovery on the note sued on; but the 3d1 and-4th replications set up, (the 3d) that at the'time of-the execution and delivery of- the note, it was understood’ and agreed, that said note was given in full settlement and satisfaction of all claims or demands of plaintiff against the said J. C. Booth, J. B. Trimble & Co., and any and all persons-whomsoever, for or on account .of the money of plaintiff, which had been in the hands of said Booth as treasurer, and which was alleged to have been-deposited in the bank of J. B. Trimble & Co., and that in the pursuance of said agreement, plaintiff accepted said-note in full satisfaction of all demands, and abandoned and surrendered all said claims and demands; and (the 4th), that the note sued on was given and accepted in settlement and compromise of the claim of the plaintiff against the defendant and J. B. Trimble & Co. These replications were demurred to, and the demurrers were properly overruled, certainly as to the 3d and 4th. It is well settled, that a promise, verbal or written, to pay the debt of another, if- not founded on a present liability, or a new consideration, will- not support an action, and when the promise is simply to pay the debt of another, it is not binding, without being in writing based on a consideration expressed in writing; and in cases where the debt is .extinguished, or the day of payment postponed, either expressly or by implication, the contract is a new substitutionary one and binding. — Read v. Rowan, 107 Ala. 366, and authorities there cited. Again, it is,held, that any benefit resulting to the party promising, or detriment to the party to whom the promise is made, is sufficient, however slight, or insignificant it may seem to .be in point of fact; for the adequacy of the consideration for,the contract, rests in the judgment of the,, par ties; and- in legal contemplation, if it is of any value; the contract will be enforced, in the absence of fraud.or duress in its - procurement.' Bolling v. Muncus, 65 Ala 558. 5. As we have said, the plaintiff had a-claim for-this money, either on the defendant or .on-Trimble’& Oo. — i' against the defendant, fif he deposited th'e- monéy on his own account, or against Trimble & Co., if he deposited it, in his representative capacity, as set out in the 7th [379] plea. If, therefore, the defendant, in entering into the agreement for the settlement, procured the release of Trimble & Co., — as well as that, however wrongfully asserted, against himself and his sureties, — from plaintiff’s claim, and the debt or obligation was extended from January, 1894, to January, 1897, as appears by the note it Avas, there is an element of detriment to the plaintiff, which constitutes a sufficient consideration to uphold the note. The note recited that it was given for “value received,” which itself Avas sufficient, on its face, to place it without the influence of the statute of frauds. Flowers v. Steiner, 108 Ala. 440. 6. The plaintiff introduced as a witness, one BroAvder, who, after testifying that he was the secretary of the plaintiff corporation, and that the note sued on was executed by defendant, was ashed by plaintiff’s counsel: “What was the agreement between plaintiff and defendant as to the giving of said notes?” — the one sued on, and the others given, Avhich had been previously paid by defendant. The defendant objected to said question, upon the ground, that the same Avas illegal and irrelevant, and called for illegal testimony, Avliich objection Avas properly overruled. It is always permissible, where a note, as here, does not express on its face for what it Avas giAren, to show the real consideration, (Reader v. Helms, 57 Ala. 440); and it is well settled, “that the consideration of contracts in writing is in general open to inquiry, and it is not an infringement of the rule excluding parol evidence to add to, vary, or contradict writings, to receive parol evidence of the actual consideration, for the purpose of determining its validity, or its failure, or that from any cause it is sufficient or insufficient to support the contract.” Ramsey v. Young, 69 Ala. 157; Davis v. Snider, 70 Ala. 315; 1 Greenl. Ev., §185; 1 Parsons on Notes & Bills, 194. The witness testified that it. was agreed by the-plaintiff, that it would release defendant and his sureties on his bond as treasurer, and all claims upon this fund against all other persons upon the giving of the notes, and that, to the best of his recollection, upon the giving •of the.notes, the bond was surrendered; 7. The witness Avas asked, if he had the minutes of the [380] plaintiff corporation, where action was' taken, regarding-the giving of said-notes, and replying that he had, plaintiff’s counsel asked him to read the minutes, and offered them in evidence, first proving that the defendant was present at said meeting, and was a member of the corporation. .The defendant objected to the reading of the minutes and their introduction, for that they were illegal and irrelevant. The court did not err in overruling the objection. The minutes of the meeting when proved were competent evidence of what was done at the meeting.- — -1 Greenl. Ev., §493. The minutes recited, that on January 17th, 1894, there was a meeting of the plaintiff corporation, and that a motion was made to accept the notes sued upon and to deliver bond up to Booth. The plaintiff introduced two other witnesses, who also testified, as the bill of exceptions states, in substance, to the same effect, as the first witness. The defendant introduced J. C. Booth, the defendant, as a witness, “who testified in substance, that he was the treasurer of the defendant corporation, and that the money Avas on deposit to his credit as treasurer of said corporation, with J. B. Trimble & Co., bankers, and that the only consideration of the giving of said notes was the agreement of the company to release him and his securities from said bond as treasurer.” This was all the evidence. The court rendered judgment in favor of the plaintiff, and in this there was no error. Without reference, specially, to replication 1, those marked 3 and 4, on which issue was joined, were proved by the great preponderance of the evidence, entitling plaintiff to judgment. Affirmed.