Doe ex dem. Holman v. Crane , 16 Ala. 570 ( 1849 )

COLLIER, C. J.

The material questions in this case are whether the bond of Oliver Holman of the 29th September 1821, by which he undertook to give to Charles Brown a quit claim deed to certain lands in the city of Mobile, to be executed in two years from date, if said Charles request,” and an agreement of the same date, signed and sealed by both parties, containing reciprocal covenants in respect to their partnership interests, &c., are parts of the same transaction; and whether a specific execution of the condition would be enforced without proof on the part of the obligee, that he had performed any or all the covenants for which he stipulated?

It has been so often decided as to be now a settled rule that several instruments in writing made at the same time, between th'e same parties, and relating to the same subject, constitute but one agreement, and such a priority in their execution will be presumed as will best effect the intent of the parties. — Stephens v. Baird, 9 Cow. Rep. 274; 1 Fonb. Eq. 436, 5th edit.; Montague v. Tidcombe 2 Vern. Rep. 519; Lawrence v. Blatchford, 2 Vern. Rep. 457; Newhall v. Wright, 3 Mass. Rep. 138; Fowle v. Bigelow, 10 Mass. Rep. 379; Hopkins v. Young, 11 ib. 302; Hunt v. Livermore, 5 Pickens Rep. 395; Sibley v. Holden, 10 ib. 250; Makepeace v. Howard College, ib. 302; Rogers v. Kneeland, 13 Wend. Rep. 114; Bates & Hines v. The Bank of Ala. per Collier C. J. 482; Adams v. Hill, 4 Shep. Rep. 215; Duncan v. Charles, 4 Scam. Rep. 561; Strong v. Barnes, 11 Verm. Rep. 221; Reed v. Field, 15 Verm. Rep. 672; Sewall v. Henry, 9 Ala. Rep. 24.

In Aldridge v. Birney & Co. 7 Mon. Rep. 347, it was held that the date and subscribing witnesses to two several writings being the same, it may be inferred that one was the consideration of the other. So where the two instruments are of the same date, between the same parties, and that executed by the complainant .is avered in the answer of the defendant to be the consideration of his contract, in the absence of all proof of any additional or different dealings between the parties, the presumption is fair, that one was executed in consideration of the other. — Campbell & Davis v. Harrison, 3 Lit. Rep. 294. See also Johnstone v. Gwathmey & Co. 4 Lit. Rep. 319.

Dillingham v. Estill, 3 Dana’s Rep. 21, was an action for the breach of a warranty of soundness contained in a bill of sale of two slaves, to which it was pleaded, that the following writing, viz: “ I, Benjamin Estill, release said Dillingham from any responsibility of said negroes, as witness my hand, Benjamin Estile,” — was executed simultaneously with the bill of sale, and was an integral part of the contract of sale, and was intended to operate as a defeasance of warranty. It was objected that the writing pleaded could not be connected with the bill of sale by parol testimony, or by averment merely. The court said, “it has been decided that one writing cannot be connected with another, unless it in some way refers to it But if that here relied on was contemporaneous with the bill of sale, it can be understood as refering to it, Without any parol proof. For surely, if a vendor of slaves makes a bill of sale with warranty, and at the same time, the vendee delivered to him a writing, stipulating that he should not be responsible for “ the said negroes,” the latter agreement might, without any extraneous proof, be understood to refer to the former, and to mean that the vendor shall not be responsible on his formal warranty. It would not be inconsistent with either of the writings, or with any rule of evidence, to prove that they were given at the same time; and indeed as that given by the appellee has no date, the fact of identity as to date is far from being intrinsically improbable. Then the fact being sufficiently avered in the plea, is admitted by the demurrer.” It is not only allowable to show that the writings were made at the same time, but the circumstances under which they were made, that it may be seen whether they evidence parts of an entire transaction, or what, if any connection, exists between them. Heywood v. Perrin, 10 Pick. Rep. 228; Etting v. The Bank of the U. S. 11 Wheat. Rep. 59; 3 Phil. Ev. C. & H. notes 1420; Wilson v. Troup, 2 Cow. Rep. 195; Sumner v. Williams, 8 Mass. Rep. 214; Fowle v. Bigelow, 10 Mass. Rep. 379; Hopkins v. Young, 11 Mass. Rep. 302; Howland v. Leach, 11 Pick. Rep. 154; Hollingsworth v. Fry, 4 Dal. Rep. 345.

True, the bond executed by Holman and the agreemetit of Brown and himself, both bear the same date and are attested by the same witnesses, and perhaps if the case of Aldridge v. Birney be recognized as settling a principle of universal application, we should be compelled to infer a connection between them, and that one of the writings was the consideration for the other. We, however, think that that case cannot be supported, if we correctly understand it. The same court in the subsequent case of Dillingham v. Estill do not assume that the simultaneousness of the date authorised the inference that the subject matter was identical; while the connection was fairly inferable from the face of the writings, it is distinctly acknowledged, “ that one writing cannot be connected with another, unless it in some way refers to it.”

The bond undertaking to give a quit-claim deed to one half of certain lands which -the, obligor had purchased in Mobile, makes no reference, directly or indirectly, to any other agreement or transaction between the parties; and it cannot be in-fered from the subject-matter of each that they are in any ' manner connected — it would be a mere arbitrary assumption, resting upon no certain foundation. But even conceding that both instruments were consequent upon the parnership dealings of the parties to them, and does it follow that the performance of Brown’s covenant in respect to the collection of certain notes and accounts, or of any other duty devolved upon him by the agreement, formed any part of the consideration for Holman’s bond, or was a condition connected with the execution of the deed ? We think not. Such may have been the intention of the parties; but it would be too much, in the absence of extrinsic evidence, to assume it as a legal conclusion. The omission of the recital of the consideration which induced the execution of the bond, does not impair the obligation, or impose upon the obligee the necessity of proving it by evidence aliunde — if the consideration is not impugned, it will be intended to be sufficient. This precise question was thus determined upon the bond now before us, after an examination of our act of 1811 in respect to writings as evidence, in The Heirs of Holman et al. v. The Bank of Norfolk, 12 Ala. Rep. 369. It is not therefore incumbent upon the party claiming under the bond to sustain it, until it is assailed. The opposite party produced no evidence to show the inducements to its execution, and we have already said that the bond and agreement did not per se establish their connection, so as to require the obligee to prove a performance of his covenants to entitle him to the deed, which the obligor undertook to “give.”

It is argued for the plaintiff, that as Holman undertook by his bond to execute the quit claim deed to Brown in twóyears, if requested, and Brown stipulated by his agreement “ to use his best endeavors to collect” certain notes and accounts “due to the firm of Holman & Brown, for the term of two years”— after which time the uncollected balance was to be divided between H. & B., it must be inferred that this covenant of Brown was the consideration for the bond by Holman. This argument is founded upon the fact that the limitation as to the lime when the parties were to perform their respective engagements is identical; and that the covenants being to be performed at the same time, neither can maintain an aclion without showing a performance of, or an offer to perform, or at least a readiness to perform his part. — Platt on Cov’nfs, 106. If the two writings could be connected as the argument supposes, perhaps the legal conclusion would follow. But as the subject-matter and apparent object is dissimilar, and neither refers to the other in terms, or by obvious implication, we cannot intend that they evidence a single transaction. It would be too much to assume that in making the time when the writings could be enforced the same, it was intended to make the respective stipulations of the parlies dependent upon each other.

It may be admitted that where the effect of written instru-, ments depends not merely on their construction and meaning, but upon collateral facts in pais and extrinsic circumstances, the inferences oí fact to be drawn from them should be left to the jury — “an admixture of parol with written evidence draws the whole to the jury.” — Etting v. The Bank of the U. S., 11 Wheat. Rep. 59; 3 Phil. Ev., C. & H.’s notes, 1420; Sewall v. Henry, 9 Ala. Rep. 24. Where, however, the meaning is to be collected from the writing, without the aid of extrinsic proof, it is the province of the court to construe it. — lb. In the present case there was no evidence aliunde shewing under what circumstances the writings were executed, or which could in any manner vary their interpretation. It was then the duty of the court to determine their effect from what appeared on their face, and there was no inquiry of fact which should have been referred to the jury.

As then there was no extrinsic evidence to establish the connection of the writings, it would have been competent for a court of equity to have enforced a performance of the stipulation of the bond; and there is consequently no error in the second charge to the jury. The question arising upon the first charge has not been pressed at the bar, and we understand it was decided in The Heirs of Holman et al. v. The Bank of Norfolk, 12 Ala. Rep. 369, in conformity with the ruling of the Circuit Court. The judgment is therefore affirmed.

Dargan, J., not sitting.