Plott v. Foster

PELHAM, J. If the written agreement or contract made the basis of the appellee’s suit, as plaintiff, in the court beloAV is Avithin the statute of frauds, the contract or agreement would be void, unless it expresses the consideration (Code, § 4289, subd. 3; Lindsay v. McRae, 116 Ala. 542, 22 South. 868; White v. White, 107 Ala. 417, 18 South. 3; Foster v. Napier, 74 Ala. 393), but as Ave construe the agreement it is not Avithin the statute. The contract or agreement, in the first place, if a promise to pay the debt of another, is a promise to pay out of a fund or moneys coming into the hands of the promisor from the original debtor. Such an agreement is not Avithin the statute. — Woodruff v. Scaife, 83 Ala. 152, 3 South. 311; Westmoreland v. Porter, 75 Ala. 452. Nor are Ave prepared to say that the agreement does not express a consideration, but are rather inclined to think it does; but clearly the agreement is not to pay [406] the debt of another, but to pay one’s own debt in a particular way, and this is not within the statute. — Aultman v. Fletcher, 110 Ala. 452, 18 South. 215. What Ave have said disposes of the first eight assignments of error. The ninth and tenth assignments are based on the court’s allowing the witness E. B. Poster to ansAver the question, “Have you seen this paper before?” (referring to one of the mortgages transferred and described in the contract sued on). It was entirely proper to allow the witness to identify the mortgages, and to permit the proof to be made of their having been delivered by the transferee, Plott, to a person acting for and representing the makers. One of the issues in dispute pertained to whether or not the mortgages had been paid, and their delivery by Plott to the makers, or one acting for them, Avas a circumstance to be considered in this connection by the jury. This disposes of assignments of error numbered 9, 10, 11, 12, 14, and 15. The question asked the witness E. B. Poster and made the basis of the thirteenth assignment of error Avas evidently for the purpose of identifying the paper inquired about, and there was no error in overruling the defendant’s objection and allowing the Avitness to answer the question. The witness Sam Harris was shown not to have any knoAvledge on the subject, and the court properly sustained an objection to the question propounded to this witness to state the balance due on the mortgages; for anything he might have stated would have been hearsay. The court properly, on the objection of the plaintiff, refused to allow this witness to show and testify to entries put upon the books at the direction of the defendant, and as to the correctness of which the witness had no knowledge or information. This disposes of the assignment of errors insisted upon to No. 19, inclusive. [407] The objectionable part of the question propounded to the witness Plott on cross-examination, to which the court overruled an objection, made the basis of the twentieth assignment, we need not consider, as this part of the question is not shown to have been answered by the witness in the evidence set out in the bill of exceptions. The charge given at the request of the plaintiff and made a predicate for the twenty-first assignment states a correct proposition of law, and if the defendant thought it was calculated to have a misleading tendency he should have requested an explanatory charge.— Hammond v. State, 147 Ala. 79, 41 South. 761; Heningburg v. State, 153 Ala. 13, 45 South. 246. Even if the charge be considered as abstract, the court cannot be put in error for giving it, unless it clearly appears the jury were thereby misled to the prejudice of the appellant.” — Fitzpatrick v. McLaney, 153 Ala. 586, 44 South, 1023, 127 Am. St. Rep. 71; C. of G. Ry. Co. v. Hyatt, 151 Ala. 355, 43 South. 867. What we have already said disposes of assignments of error Nos. 22, 23, 24, 25, and 26. The matters insisted upon show no reversible error, and the judgment of the lower court will be affirmed. Affirmed.