First National Bank v. Steiner, Lobman & Frank

SIMPSON, J. This suit is by the appellant, against the appellees, to recover on the contract, set out in the statement of the case by the reporter. This contract was construed by this court at a previous term.—Leftkovitz v. First National Bank of Gadsden, 152 Ala. 521, 44 South. 613. Pleas 22, 31, and 32 alleged that the contract sued on was delivered to “Boykin & Brindley, Attorneys.” These pleas were demurred to, on the ground that they failed to allege that said Boykin & Brindley were strangers to the transaction or that they were not the attorneys for the plaintiff. The mere addition of the descriptive word “attorneys” did not raise any presumption that Boykin & Brindley were the attorneys of plaintiff; and if they [249] were, and it was delivered to them in such a way that it could not be an escrow, then that Avould be a complete ansAver to the plea., as it would be a delivery to the plaintiff. Also, it is not a uniyersal rule that a paper may not be delivered to the attorney of the party, as an escrow.—Ashford v. Prewitt, 102 Ala. 264, 273-275, 14 South. 663, 48 Am. St. Rep. 37. It may be stated, also, that in regard to these pleas, and in regard to the replications thereto, to which demurrers were sustained, all evidence pertinent thereto Avas admissible under other pleadings in the case, so that if there was any error in the ruling it was without injury. The demurrers to plea 38 should have been sustained. A plea should state succinctly the facts on which the defense is based, and not an argument, from Avhich the defense may be inferred. This plea alleges, first, •the parol agreement, as to the signing of the name of one of the parties, which this court has decided could not be done, as it sought to vary the terms of the Avritten contract.—Leftkovitz v. First National Bank, etc., 152 Ala. 521, 528, 529, 44 South. 613. It then goes on to allege a subsequent agreement, with regard to placing Wohl Brothers in bankruptcy, but does not allege that this was to be a substitute for the original agreement, or that the defendants Avere in any way released from its obligations. Counsel for appellee insist that the clear inference to be deduced from these facts is that the plan contemplated by the agreement had failed and that a neAV arrangement had been made, hut that is argument, not pleading. The plea is bad, and the demurrer to it should have been sustained. In the view we take of it, there was no error in sustaining the demurrer to the replication to plea 38, because there was no allegation that the plaintiff had en [250] terecL into any agreement to discharge or extinguish the obligation of the original contract. Replications ought to allege facts, a.nd not inferences deducible by argument, from the facts alleged. The judgment of the court is reversed and the cause remanded. .Reversed and remanded. Dowdell, C. J., and McClellan and Mayfield, JJ., concur.