Moragne v. Richmond Locomotive & Machine Works

TYSON, J. — On a former appeal in this case, plea No. 7 was held bad on demurrer, for the reason that parol extrinsic evidence cannot be resorted to, to alter or vary ‘the legal effect of the written instrument sued upon. — Richmond Locomotive & Machine Works v. Moragne et al., 24 So. Rep. 834. Since a'remandment of the cause, this plea has been amended by adding the following words: “And that it was a part of the contract of sale of said machinery that the said notes should have been given by defendant as board of business managers of said corporation, and not as individuals and that the said corporation should be bound for the payment of the same and that said individuals should not as such individuals be bound. The fact being that said corporation, the Etowah Alliance Manufacturing Company had bought said machinery from plaintiffs and paid one-third cash for same out of its treasury to plaintiffs, and with full knowledge of plaintiffs that the said machinery was bought and the said cash payment made by said corporation to plaintiff out of its treasury and not .by these defendants. Hence defendants say they are not liable for said debt.” The complaint counts on a promissory note made by the defendants and no one else. The purpose of the amendment to the plea- is .to shift the prima facie liability imposed upon them by the execution of the note, and impose it upon the Etowah Alliance Manufacturing-Company, their principal, for whom they purchased the machinery, because as alleged it was the intention of the parties, that their principal should be bound and not them. The legal effect of the note was to bind them, and them alone, and in the absence of any averment that the name of the Etowah Alliance Manufacturing Company appears on the face of the note as' an obligor in such way as to render it doubtful from the paper itself which of them, the company or the defendants, was intended to be bound, parol evidence is inadmissible to show it was the intention to bind the company and not the defendants. — Richmond Locomotive & Machine Works v. Moragne et al., supra, and authorities cited therein. The defects in the plea, as pointed out on the [541] former appeal, were not cured by the amendment, and the demurrer was properly sustained to it. The 8th and 9th pleas set up a novation in that the plaintiff accepted the promise of third parties named in the pleas to pay this debt. Indeed the only difference in the verbiage of the pleas is in stating the name of this third party. There are four essential requisites to a novation — first, a previous valid obligation; second-the agreement of all the parties to the new contract; third, the extinguishment of the old contract, and fourth, the validity of the new one. — 16 Am. & Eng. Ency. Law, 864 and note. The insistence is that plea No. eight does not show that the agreement alleged in it ever became an executed contract, in that the Etowah Alliance Manufacturing Company made a promise to pay to plaintiff the amount due upon the notes sued upon. And further that it is not shown by the plea that this company was not before the making of said agreement liable to the plaintiff for the debt sued on. These insistences are properly raised by demurrer to the plea. A majority of the court are of the opinion that the facts averred in the plea are sufficient to show a contemporaneous agreement between the plaintiff, defendants and the Etowah Alliance Manufacturing Company, by which the plaintiff released and discharged the defendants in consideration of the absolute promise by the company to pay these notes and an acceptance by the plaintiff of that promise. They hold the plea sufficient. In this construction of the plea I cannot concur. A verbal promise of the Alliance Manufacturing Company if made and accepted would of course be sufficient. and a release and discharge of the defendants by the plaintiff would be a sufficient consideration to support the promise. What is here said of plea 8 applies to plea No. 9. It follows that the demurrer to each of these pleas should have been overruled. It is sufficient to say of plea 10, for aught that appears from its averments, that by the terms of the contract of sale, the plaintiff was obligated to deliver the [542] machinery to the Etowah Alliance Manufacturing-Company. For the error pointed out the judgment must be reversed and the cause remanded.