Myrick v. Wallace

WALKER, P. J. — It follows from the ruling made when this case was here on a former appeal (Wallace v. Myrick, 1 Ala. App. 572, 55 South. 259) that the court did not err in sustaining the plaintiff’s demurrers to the defendant’s pleas numbered 4, 5, 7, 9, and 10, as the averments of neither of those pleas showed that the plaintiff accepted Cooper’s agreement to pay the de [403] fendant’s debt, which is here sued on, in full discharge of the defendant’s liability for that debt. The bill of sale executed by the defendant to Copper was properly admitted in evidence against the defendant, as it contained an express statement or admission of the existence of a debt due by him to the plaintiff, and so supported averments of the plaintiff’s complaint. But that paper evidenced a contract between the defendant and Cooper, to which the plaintiff did not purport to be a party. It did not evidence a contract between the plaintiff and the defendant, or form the basis of an estoppel against the latter in favor of the former. The admission made in it by the defendant of the existence of a debt due by him to the plaintiff ivas not conclusive against him in favor of the plaintiff in this suit, but was open to rebuttal or explanation. In this suit it was permissible for the defendant to contradict his statement made in a contract between him and Cooper, to the effect that he was indebted to the plaintiff, and, under his plea of the general issue, to introduce evidence tending to prove that the debt which he admitted in that contract Avith Cooper Avas never OAving by him, or by any one else. “The rule against varying or contradicting Avxdtings by parol obtains only in suits between, and is confined to, parties to the Avritings and their privies, and has no operation with respect to third persons, nor even upon the parties themselves in controversies with third persons. * * * But this rule is confined in its operation to the parties to the written instrument; where it comes in question collaterally, in a suit to Avhich a third person, a stranger to the Avritings, is a party, neither party is estopped from contradicting it, or from proving facts inconsistent with it.”- — Robinson v. Moseley, 93 Ala. 70, 9 South. 372; Troy Fertilizer Co. v. Norman, 107 Ala. 667, 18 South. 201; British & Amer [404] ican Mortgage Co. v. Cody, 135 Ala. 622, 33 South. 832; Jones on Evidence, § 296. To the plaintiff’s complaint containing counts for Avork and labor done, and on open and stated accounts, he pleaded the general issue, as Avell as several special pleas. In support of his plea of the general issue, it was permissible for the defendant to offer evidence of previous statements or admissions made by the plaintiff, Avhich were inconsistent with his testimony to the effect that the defendant was indebted to him, and to prove that the plaintiff was not in fact a creditor of the defendant, but that his relation with the' business, in the operation of which he claimed that the defendant became indebted to him, was that of a partner in the business; and that the creation of a debt due to him was not as a result of the transactions in reference to which he deposed. By several rulings of the trial court, to which exceptions were duly reserved, evidence offered by the defendant was excluded Avhich, under the ruling just stated, should have been admitted. Because of the errors involved in such rulings, the judgment appealed from must be reversed. Reversed and remanded.