Morrison v. Taylor , 21 Ala. 779 ( 1852 )

CHILTON, C. J.

— We will notice the assignments of error in their order:

1. The first is, that the court erred in refusing to strike out the third and fourth counts of the declaration, for a supposed variance. These were the common counts. It has been several times ruled bj this court, that a variance between the cause of action endorsed on the writ and the declaration must be total, and amount to a radical departure, to authorize the court to reject the declaration. Tenison v. Martin, 13 Ala. 21, and cases there cited. There is no such departure in the counts before us, and the motion to strike out was properly-disallowed. 13 Ala. 460.

2. As conducing to prove that the plaintiff was fully indemnified against his liability for Smith, who was the principal in the two forty-five dollar notes, on which said plaintiff became bound as security, the defendant offered to introduce in evidence a copy of a trust deed, the original having been shown to be lost, made by Smith, the principal in the note, to the plaintiff “ to secure the payment of a certain note made payable to the estate of Randolph Allsap, deceased, for the sum of ninetjr dollars,” &c. This deed the court decided was irrelevant, on the ground that there was a variance between the demand described in it and the -two notes which had been paid by the plaintiff. The defendant then offered to connect the deed with proof, to show that the ninety dollar demand secured in the deed was the same shown by the two forty-five dollar notes; but the court rejected this explanatory proof.

The question, as applicable to the proof offered, was, whether the plaintiff below had been fully indemnified by the principal in the matter of his liability as security. If he was so indemnified, he had no right to invoke the equitable doctrine of contribution, for his claim to contribution being founded upon an equity to call upon another to share with him a common burthen, he must be entitled ex cequo et bono to recover, or he must fail.

Now, if the demand for which Taylor, the plaintiff below, was liable, was secured and fully provided for by this deed, it is very clear he could not recover contribution out of his co-sureties, but must indemnify himself out of the means placed in his hands. Bezzell v. White, 13 Ala. 422. Nor do we think it at all material that, in describing the indebtedness in the deed, which does not purport to give a particular description of it, it is set out as due upon one instead of two notes. The amount secured is the same, and it is described as due from Smith to the estate of Randolph Allsap, deceased. It was perfectly competent to identify the demand by parol proof. In Posey et al. v. The Branch Bank at Decatur, 12 Ala. 802, it was decided by this court, that parol evidence is admissible to show that a particular bill of exchange was intended to be secured by a deed of trust, although generally or improperly described in the deed. See, also, Duval’s Heirs v. McLoskey, 1 Ala. 708. This authority is decisive of the case before us, and shows that the County Court committed an error in excluding the parol proof in connection with the deed.

Let the judgment of the Circuit Court, affirming the judgment of the County Court, be reversed, and the cause remanded.