Crow v. Burtwell

PELHAM, P. J. It Avas our conclusion, and it Avas so stated in the original opinion reversing the judgment of the lower court, that pleas Nos. 2 and 3 contained averments showing a sufficient consideration to support the release therein pleaded, and that the trial court- committed reversible error in sustaining the demurrers to these pleas taking the point that they failed to shoAV a consideration for the release set up by the pleas. Upon a reconsideration of the case on rehearing, we are of the opinion that to so hold is to indulge presumptions and implications in support of the pleas as against the demurrers directed against them that are not justified under an application of the proper rules of construction; and the original opinion has been withdrawn. The voluntary offer, averred in the pleas to have been made by the plaintiff (appellee here), to release part of the rent evidenced by the note which the defendants were legally obligated to pay, shows no consideration for the offer, and the mutual agreement set up between the parties, Avhereby the plaintiff was to- release the defendants from a part- of their obligation to pay the rent evidenced by the notes sued upon, is not shown by the allegations contained in the pleas to have been based on any consideration moving from the promisor to the promisee, unless Ave read into the averments of the pleas by intendment that which under the rules of construction it is not permissible to do. (1) It is a familiar rule that pleadings must be construed most strongly against the pleader, and facts not averred must be presumed not to exist (Lovell v. Debardeloben, 90 Ala. 13, 7 South. 756), and that in-con [472] struing pleadings courts are not justified in reconstructing and transposing the language employed so as to make certain that which is uncertain.—B. R., L. & P. Co. v. Wright, 153 Ala. 90, 106, 44 South. 1037. (2) The contract had been performed on one side, and only the money evidenced by the rental notes sued upon remained to be paid on the other. Such a contract cannot be changed, or a partial release effected as between the parties based alone on mutual assent unsupported by other consideration.—Westmoreland v. Porter, 75 Ala. 452. (3) For aught appearing in the pleas to the contrary, the defendant’s acceptance of the plaintiff’s voluntary offer to release him from payment of part of the notes and his payment of $20 was not until after the maturity of the notes. The allegation that part of the premises had been destroyed by fire and this part “abandoned” by the defendant to the plaintiff does not relieve the agreement or release set up from being a nudum pactum. There is no averment that the plaintiff accepted the abandoned part of the premises and took possession of it under an agreement to release the defendant of payment of part of the rental for which he was bound, and from which a partial destruction of the premises by fire did not relieve him. — 4 Mayf. Dig. 40, § 239. Construing the pleas, as is the rule, most strongly against the pleader, and not indulging inferences in support thereof favorable to the pleader, no- consideration is alleged for the release set up. in the pleas, and the court properly sustained the demurrers taking this point, and, this being the only question presented, it follows that the judgment appealed from must be affirmed. (4) Another reason why there should be a judgment of affirmance is furnished by the fact that the appeal [473] is on the record without a bill of exceptions, and the court could not say that it is of the opinion, after an examination of the entire case as presented by the record, that the rulings complained of on the pleadings, if error, probably injuriously affected the substantial rights of the parties, and the record failing to show that the rulings on the pleadings, if erroneous, were probably prejudicial, an affirmance should follow under Supreme Court rule 45 (see front pages of 175 Ala. xxi, 61 South, ix).—Henderson v. Tenn. Coal, Iron & R. R. Co., 190 Ala. 126, 67 South. 414. Affirmed.