Byrd v. Hickman

McCLELLAN, J. This is the second appeal in the cause.—Byrd v. Hickman, 159 Ala. 505, 48 South. 669. The sole question considered and decided on that appeal was whether the agreement made by Byrd to Hickman, over the phone and not in writing, to pay, as Hickman contended, the Lewis mortgage debt to Hickman, mortgagee, was within the statute of frauds pleaded in the cause. It is now contended, upon amended (after reversal here) counts 4 and 5, that Byrd’s alleged promise to — 355 — the Lewises to pay their mentioned debt to Hickman,, a third person for a consideration passing from Mrs.. Lewis to Byrd or in consequence- of a detriment suffered by the Lewises, or either of them, as the immediate result of a reliance upon Byrd’s promise to pay Hickman’s mortgage debt, vested Hickman with a right of action against Byrd -on that promise. In short, the decision on former appeal dealt only with the inquiry whether the promise over the phone was within or without the statute of frauds. In deciding the question, necessarily requiring the construction of that agreement and the determination of its legal effect, it was ruled that forbearance was the sole consideration moving from Hickman to Byrd and supporting Byrd’s promise to subsequently pay the Lewis mortgage debt; that forbearance is a sufficient consideration to support the promise of a third person to pay the debt of another to the debtor’s creditor-; and that such an engagement^ not being a new and-independent agreement, to which the payment of the debt or the other is a mere incident, is precisely the character of undertaking • or obligation which the statute of frauds-was intended to include and to which that statute does apply. The decision was rested distinctly upon the case of Westmoreland v. Porter, 75 Ala. 452, which was in immediate point. It was delivered in 1883, and has been repeatedly referred to since without intimation that its rule, in the particular in question, was of doubtful soundness. Its doctrine is expressly recognized in Clark v. Jones, 85 Ala. 127, 4 South. 771. That the doctrine of the case is generally regarded as sound may be seen by reference to 20 Cyc. p. 192, and notes to subhead 3. After determining the question presented, as indicated, in the former appeal, out of the abundance of caution we expressly excluded an intent to consider or — 356 — pass upon the application vel non of the statute of frauds to the promise, both affirmed and denied in the evidence, by Byrd to the Lewises, to pay the Hickman mortgage debt. That excluding expression might well have been omitted, since if for a consideration moving from the debtor, or for a detriment suffered by a debt- or, a third person engages with the debtor to pay the debt to the creditor, the agreement is not within the statute of frauds, because that engagement is new and independent and is supported by a new consideration, thereby excluding the idea that the engagement is one of mere suretyship which, to avoid the condemnation of the statute of frauds, must be in writing.—Clark v. Jones, 85 Ala. 127, 131, 4 South. 771. The amendment was made by the addition of counts 4 and 5. They will be set out in the report of this appeal. As appears, these counts proceed on the theory that Byrd’s promises to the Lewises to pay the Hickman debt was based upon a new consideration of advantage to Byrd or of detriment to the Lewises, or both advantage and detriment, respectively. If supported by a consideration, that promise of Byrd’s was without the statute of frauds and enforceable by the beneficiary, the creditor, Hickman, though not in writing. It is insisted in brief that counts 4 and 5 effected to bring in a new cause of action. The question was not presented or decided below. After demurrers to counts 4 and 5 were overruled, the defendant pleaded, besides the general issue, want of consideration and the statute of frauds. There was no plea of the statute of limitations to the cause of action' averred in counts 4 and 5. On these counts (4 and 5) the issues were only'those raised by the pleas indicated. It follows, of course, that the general affirmative charge requested by defendant invoked only a ruling of the court upon the issues of — 357 — fact created, by the averments of the counts and the pleas interposed thereto, and the statute of limitations Avas not one of them. We can conceive no case Avhere the general affirmative charge could serve in lieu of objection to the allowance of an amendment alleged to Avork the introduction of a neAv cause of action, or of motion to strike, on that account.—Tenn. & Coosa R. R. Co. v. Danforth, 112 Ala. 80, 20 South. 502; Stewart v. Goode, 29 Ala. 476. The contention, grounded on some of the assignments of demurrer to count 5, that that count undertook to enjoin tAvo distinct causes of action, cannot be sustained. Beading count 5 in connection Avith count 4,. as adopted by count 5, it is clear that the engagement declared on in count 5 Avas that averred in count 4, Avith the addition thereto of an element incorporated therein by mutual assent of the parties, viz., the agreement of Mrs. Loavís to transfer to Byrd the rent note for 1907. No neiv consideration other than mutual assent of Lewis and Byrd Avas necessary to support the addition so made to the agreement set forth in count 4.—Cooper v. McIlwain, 58 Ala. 296; 2 Mayfield’s Dig. p. 798. The chief matter of controversy on this appeal is whether the promise of Byrd, as described in count 4, to pay the Hickman debt, was supported by a new and independent consideration. It is insisted for appellant that the rule that one’s doing, or agreeing to do, or not to do, that which he is in duty bound to do, or not to do, is not a sufficient consideration to support a promise by another. The rule is of course sound. — 1 Pars. Contr. p. 475, and notes. We see no escape from the conclusion that, as far as the case made on count 4 is concerned, the application of the just-stated rule to the 'evidence before the court — 358 — required the giving of charge 5, requested for defendant. That instruction declared that the promise of Byrd, made “down in the field,” was without consideration. We quote Mrs. Lewis’ testimony hearing on this matter, ■and nowhere in the bill is its force or effect qualified in respect of the promise relied on in count 4: “In the spring or early summer of 1906, the defendant came to my field where I, my husband, and Wes Dunn were at work, there being no one present at the time except those named, and asked me if we could help him out on what we owed him. At that time, I and my -husband both were indebted to R. E. Byrd & Co., of which defendant was a member, as well as to the Bank of Coffee Springs, of which defendant was cashier; but I cannot say how much we owed said company or said bank. I told the defendant that I could and would help him on what we were owing him, provided he would help me on what I owed plaintiff when it was due; that I then held a check for $100 which was the proceeds of the sale of my timber, which I had and held to pay to plaintiff on the note and mortgage due him on the 1st of October, and already mentioned, having sold the timber to get the money to pay plaintiff. Defendant then told me, if I would pay him the money, he would pay the amount I owed plaintiff when it fell due, and, defendant having made this agreement, I said: “On your promise to pay plaintiff said debt of mine, when it falls due, I will pay you $75 of said check.’ I then went to the house and paid him $75 of said check; the defendant taking the check for $100 and returning to me $25. The defendant in accepting said money promised me he would take up my mortgage to plaintiff when it fell due, and told me to call his attention to the matter a short time before it fell due.” — 359 — The purpose of Mrs. Lewis, inducing her to convert the timber into money wherewith to pay the Hickman debt, is not material; the legal inquiry being the effect of her act in reliance upon Byrd’s promise. Unquestionably, she paid the sum on the debts to Byrd or to concerns represented by him. If Byrd, or the concerns represented by him, were the actors in litigation to enforce the payment of the debts due by the Lewises to them, it cannot be doubted that on the testimony in this transcript the sum paid upon the promise made by Byrd “down in the field” would justify the affirmative instruction that that sum should be credited on those debts, consistent with the rules for the application of payments. The source from which the sum so paid came, viz., timber, has been considered, in view of the fact, as we take it, that the mortgages, by the Lewises, to secure debts other than Hickman’s, did not include land from which the timber was taken; whereas, Hickman’s mortgage did cover a small tract from which the timber might have been taken. The bill does not indicate that the timber came from lands covered by the Hickman mortgage. But, if so, how could that avail Hickman? The reliance for recovery on the counts added by amendment rests on Byrd’s promise to Mrs. Lewis to pay the Hickman debt, and not on any deprivation of Hickman of the sum so paid, and which (let us assume merely) was the product of a sale of timber on which Hickman, alone, had a claim or lien created by his mortgage on the land. Count 5, and the evidence tending to its support, present a very different status from that arising out of count á and the evidence in its support. The count alleges that Mrs. Lewis promised to assign and deliver to Byrd, and later did so, a rent note from one Davis, for the rent of her land for the year 1907. It does not — 360 — appear from the count that such note or rent was delivered to Byrd as payment on their (Lewises’) debts to-Byrd or to the concerns he represented; nor does it so-appear, affirmatively, from the evidence in this case. If such was the case, under the principle applicable and applied to the status shown by count 4 and the evidence in support of it, the promise to pay the Hickman debt would fail of consideration, as must the promise made “down in the field.” The assignment and delivery of this rent note obviously afforded a new and independent consideration, of benefit to Byrd or his concerns and of disadvantage to-Mrs. Lewis, for the promise to pay the Hickman debt, if the assignment and delivery of the rent note was not merely a payment on the Lewises’ debts to Byrd or to. his concerns. It was open to inference, by the jury, from the evidence, which has been carefully considered,, that such assignment and delivery was not a payment on the debt. It is insisted in brief for appellant that an agreement concluding otherwise, as we have indicated, than as payment on the Lewis debts to interests represented by Byrd, would have been so irrational as to-forbid credence. That argument must be addressed ta the jury. Whether an asserted agreement is peculiar, or so unusual as to indicate irrationality, must in fact depend, largely, upon the point of view, as well as the circumstances surrounding the parties. A' contract that offends no law may be peculiar and may bear grievously upon one of the parties thereto, yet we know of no judicial right to avoid it because the accepted terms are onerous.—Lee v. Cochran, 157 Ala. 311, 47 South. 581. A careful consideration of the-errors assigned as upon rulings of the court in the admission and rejection of evidence shows them to be without merit. — 361 — Since á reversal must follow, we deem it proper to say, for further guide, on the next trial, if it proceeds upon the status of pleading now in the case, that there can be no recovery upon the alleged promise of Byrd other than that supported by the consideration present in the assigned and delivered rent note. In short, the recovery can only he, on the present pleadings, on the case made by the facts averred in the fifth count. Accordingly, the court should, on the present state of pleadings, expressly, if so requested, rule the right to recover down to that point. The addition of count 5 did not introduce a new cause of action. — Code, § 5367; Ala. C. C. & I. Co. v. Heald, 154 Ala. 580, 45 South. 686. Hence, even if the statute of limitations is later pleaded thereto, the court may, upon request, if the evidence is again as now, affirmatively instruct the jury that it is not sustained. The chief issues are of fact, and nothing we have said in discussion must be taken as intimating an opinion thereon. Reversed and remanded. Dowdell, O. J., and Anderson and Sayre, JJ., concur.