Moore v. First National Bank of Florence

SHARPE, J. — On a promise'.supported by a valuable consideration made by one to discharge a pecuniary obligation of the promisee to a third person, the latter if assenting, thereto^ while the promise remains in force, is entitled to sue in his own name though he may not 'ihave been otherwise a party to the contract. — Coleman v. Hatcher, 77 Ala. 217; Potts v. First National Bank, 102 Ala. 2S6; Dimmick v. Register, 92 Ala. 458; North Alabama Development Co. v. Short, 101 Ala. 333; Mason v. Hall, 30 Ala. 599; Huckabee v. May, 14 Ala. 263. In a case so founded it is immaterial whether the jdaintiff has relinquished his debt as against the prom-isee. The transaction amounts simply to an undertaking on the part of the promisor to perform his own obligation created by his contract with the promisee, and not to a promise to pay the debt of another within the meaning of the statute of frauds. — Coleman v. Hatcher, supra, and Mason v. Hall, supra. For decisions of various courts on this subject, see references contained in note to Jefferson v. Asch, (Minn.) 25 L. R. A. 257. The complaint in this case as last amended consisted [607] alone of what bad been the fourth count. It declares on the alleged promise of defendant to Nichols to pay the latter’s debt to the plaintiff bank, and not on any promise made directly to the plaintiff or its cashier Elt-ing. It sIioavs that Nichols abandoned the pending negotiations for the building of the Cherry Cotton Mill, gave up his right to perfect the same, and in so doing, alloAved defendant to effect a contract for the erection of that building and that this abandonment Avas induced by the promise sued on. This, in itself, shOAVs a Aralua-ble consideration for that promise, for though he had not furnished the security required by the mill OAvners and, therefore, had no contract Avitli them which could have been enforced or transferred, Nichols had, until he sold the same to defendant, the right to further attempt the completion of such contract and so to compete therefor Avith defendant and all others. The Avithholding, by agreement, of competition for business, though the business inArolve but a single transaction, is, Avlien not opposed to public policy, a Amluable consideration on which to rest the agreement. — 6 Am. & Eng. Ency. Law, 746; McCulloch r. Cowher, 5 Watts. & Serg. (Pa.) 427; Pierce v. Fuller, 8 Mass. 222; Heim v. Butin, (Cal.) 40 Pac. Rep. 39. The public had no concern in the letting of the contract for the mill building, and, therefore, no interest in maintaining competition. A consideration for the contract sued on being thus sb own, it is immaterial in passing on the demurrer to consider AA'lietlier the other matters alleged as forming part of the consideration amount to such, for the union of a merely insufficient with a sufficient consideration by the terms of a contract or of a declaration thereon, does not vitiate either the contract or the pleading. — Lowry v. Brooks, 2 McCord, 421. To revieAV the rulings on demurrers to counts which were stricken out of the complaint is unnecessary. Whether in the counts added by amendment there Avas a neAV cause of action introduced into the complaint is not a question proper to be raised as was here attempted by demurrer to the added counts. — Shotwell v. Gilkey, 31 Ala. 124. Nor Avas the motion to strike those counts [608] made on grounds appropriate to raise snob question, for if the first count was sufficient upon Avhich to binge tbe amendment, it is immaterial whether the second count was so sufficient, and the introduction into a complaint of a new cause of action does not constitute what is known as a departure in pleading. The complaint determines that an open or unliquida-ted account is not the cause of action sued on. Therefore pleas 1, 2 and 7 which set up the statute of limitations of three years were frivolous and were properly stricken. Nichols’ testimony is in part to effect that he was a building contractor and had become indebted to the plaintiff bank and also to defendant; that at the time of the alleged agreement with defendant he owned building-material bought for but was not used in what was called the old mill, which had been commenced and abandoned; that he had agreed on terms of a contract for erecting the Cherry Cotton Mill, the owners of which had signed the contract to be effective when he had signed the same and procured security for its performance. He had not procured the security and had not signed the contract, but had a conference with defendant Moore as to which the bill of exceptions recites he testified “that Moore suggested that he, Nichols, get out of the way and let him (Moore) make the contract, let him have the material, let him have his foreman Makin to superintend the work,, and that he would pay the $4,000 to plaintiff for him; he said Moore promised to give him profit after he got his money with ten per cent. This was agreed to and it was not to be mentioned, but they were to return to Philadelphia and tell the other parties that they were to return the papers from there. The material at the old mill that Moore was to get cost me $40,000, and was worth between $30,000 and $40,-000. * * After we got back to Philadelphia, Moore suggested that instead of conveying the material to him, that I should confess a judgment in the circuit court of Lauderdale county, Alabama, and he was to use the judgment to get the material. This he said would pre [609] vent any attachments on it. I agreed to this and confessed the judgment, and with the judgment he acquired the material, and I agreed also to let him have my place in the contract to build the Cherry Mill and did let him take it, and I agreed to send and did send my foreman Makin to Florence to superintend the work for him; he agreed with me to pay my debt to plaintiff,” etc. Other testimony tended to show defendant obtained and performed a contract for the building of the Cherry Mill at a price higher than Nichols had agreed upon. Defendant in testifying denied the making of any promise for the payment of Nichols’ debt to plaintiff. In view of the conflict of testimony and the character of the issues, it was proper to admit in evidence the writing which contained the uncompleted contract between Nichols and the Cherry Cotton Mill Company and the record entries showing the confession of judgment and the proceedings thereunder had for the sale of the material. In none of the rulings on evidence or in the portions of the oral charge excepted to do we find reversible error. That Nichols justly owed defendant the whole amount the latter claimed and took judgment for, is neither admitted nor made clear by the evidence. A forbearance on the part of Nichols to interpose any reasonable defense he could have made to defendant’s claim, would have constituted a consideration for defendant’s alleged promise. — Union Bank v. Geary, 30 U. S. 99. Eefused charges 1, 5 and 11 pretermit any consideration of whether Nichols actually owed the amount claimed of him by defendant and for which he confessed judgment, and were, therefore, bad. Charge 4 is abstract in what is therein said of a “new promise.” That term, if used with reference to the promise sued on, is inapt because the same, if made, was an original and not a new pron ise, within either the legal or the generally understood sense of the latter term. That defect, if no other, justified the refusal of the charge. Charges 2 and 1 ignore the doctrine above mentioned under which an abandonment by Nichols of his right to [610] make a contract, might, as well as a. relinquishment of an existing contract, have formed a consideration for the promise sued on. Charges 3, 6, 9, 10 and 12 were patently inconsistent with the principles to which we have referred. Judgment affirmed.