Thomason v. Dill , 30 Ala. 444 ( 1857 )

STONE, J.

There was no error in allowing the question on cross examination, which was objected to by the appellant. The relations which the witness sustains to the parties, are always admissible, as shedding some light on the credibility of the witness. — 1 Greenl. onEv. § 446.

The stipulations and agreements entered into, and reduced to writing, on the 26th April, 1853, amounted to an executed contract, passing the title of the slave to Thomason, and securing the payment of the purchase-money to Hill. — McCutchen v. McCutchen, 9 Porter, 656-7; Newman v. James, 12 Ala. 32.

The offer, or agreement by Thomason, pending the negotiation, to give sureties to the note, if demanded by Hill, was waived by the latter, by implication, when ho accepted the note of the former without surety. When a contract is reduced to writing, all previous agreements and specifications are merged in the writing; and, in the absence of fraud and mistake, stipulations left out of the writing, are considered as abandoned. — Melton v. Watkins, 24 Ala. 436; Gordon v. Phillips, 13 Ala. 567; Seay v. Marks, 23 Ala. 532; West v. Kelly, 19 Ala. 353; Pierson v. Hooker, 3 John. 68; Chapman v. Lathrop, 6 Cow. 109.

The agreement by which the slave was permitted to remain one night with Hill, was subsequent to the contract, and formed no part of it. It had no effect to impair Thomason’s title to the slave.

The testimony of the several witnesses who were examined, as to what took place between the parties in Ashville on the 27th, clearly shows that Hill desired an entire rescission of the contract, and resorted to many expedients to accomplish his object; while, on the other hand, Thomason refused to make an entire rescission, except on terms which were not acceded to. At the close of their interviews and altercations, they agreed that Thomason should have a new note executed, with certain named sureties ; and Hill should retain the possession of the slave for a few days. They separated; Thomason retaining the bill of sale, and Hill retaining the note. It is contended for appellant, that the agreement of the second day was a rescission of the contract of the first, and that the parties then made a new executory contract. On the other hand, it is contended for appellee, that the promise by Thomason, to give a new note with sureties, was without consideration, and imposed no obligation on him.

A promise, no matter how solemn or formal, cannot be enforced, if it be without consideration. — 1 Parsons on Contracts, 353; Chitty on Contracts, (8th American, from 4th London ed.) 25-6. So, a promise made on a consideration wholly past and executed, is equally invalid, unless such consideration was moved by the precedent request, either express or implied, of the party promising. — Chitty on Con. 61; 1 Parsons on Con. 391, 395-6. If the agreement of the second day was nothing more than a promise by Thomason to give sureties, in consideration of his offer to do so made ponding the negotiation, then it was a nude pact, and neither imposed any obligation on him, nor divested the title of the slave out of him. — Jackson v. Jackson, 7 Ala. 791. A promise is a good consideration to support a promise. — Chitty on Contracts, 46, and note 1. Parties, before or after the consummation of a contract, may either rescind or modify it; and no other consideration is necessary to support such contract of rescission or modification, than the- mutual agreement of the parties. — Borum v. Grarland, 9 Ala. 452; Lightfoot v. Strahan, 7 Ala. 444; Langford v. Cummings, 4 Ala. 46; Murphy v. Barefield, 27 Ala. 634; Hussey v. Roquemore, ib. 281.

In Howe v. OMalley, 1 Murphy, 287, the plaintiff had conveyed to defendant a tract of land, containing 221 acres, more or less. Some years afterwards, thejr mutually agreed to have the land surveyed; and if it was found to contain more than 221 acres, the defendant agreed to pay the plaintiff $10 per acre for the excess; and if it fell short, plaintiff was to refund to defendant at the same rate. This was held a sufficient consideration to support the promise.

In Young v. Fuller, 29 Ala. 464, this court upheld and enforced an agreement, which was nothing more than a modification of a contract previously consummated, and rested on no other consideration than the mutual agreement of the parties.

The bill of sale having been delivered to the grantee, neither party will be heard to assert that it was delivered as an escrow, to be operative only on a contingency.— Morgan v. Smith, Wykoff & Nicholl, 29 Ala. 283, and authorities cited; Warren v. Sprowls, 2 Marsh. Ky. 533-4.

This principle, however, does not deny to the parties the right to make a subsequent contract in reference to the same property. Title to slaves may be conveyed without writing; and if the parties mutually agreed to a change of their contract, by which the title to the slave was to remain in Hill, until Thomason tendered him a note with sureties, then such contract will be upheld.— See Young v. Fuller, supra. If this should be found to be the agreement, then, until Thomason complied, the title continued in Hill; and the death, at that time, of the slave, would be his loss.

Anciently, sealed contracts could only be discharged by a release under seal. That is not now the law. — Wallis v. Long, 16 Ala. 740; 2 Story’s Equity, § 770, and note 3; Rowley v. Rice, 10 Metcalf, 7.

There is, perhaps, another point of view, in which this testimony may be considered. The parties may have intended and agreed to annul the contract of the first day, so far as to discharge the note that day executed, and leave the slave with Dill, in pledge that the note with sureties would be delivered to him. If such was the agreement, and they did not consent to any modification of Thomason’s title to, or right in the slave, then the slave continued Thomason’s, and the loss would be his, although he may have had no present right to recover the possession. — Story on Bailments, §§ 286, 287. If this was the contract, then a failure or default by Thomason would not vest in Dill the title to the slave, but would merely confer on him a right to sell the property pledged, for the payment of his demand. Until a sale, Thomason would have the right to redeem by paying the debt; and any surplus of proceeds, after paying the debt and expenses, would belong to him. — Story on Bailments, §§ 300, 303, 308. This may be looked to as one of the tests by which to determine the character of the agreement of the second day; and if this was the agreement, Dill had no right of action on the note first executed.

We hold, then, that the testimony was not so entirely clear, the agreement of the parties not so entirely unambiguous, as to justify the court below in taking from the jury the consideration of its effect. We do not wish to be understood as intimating an opinion on its preponderances. We think, however, that it should have been left to the jury, under appropriate instructions, to ascertain by their verdict, — 1st, whether the agreement of the second day was nothing more than a promise by Thom-ason to give a note with sureties, pursuant to his offer of the day before, without any surrender or modification of his right to the slave; 2d, whether the first note was considered inoperative, and the slave left with Dill in pledge that Thomason would give a new note with stipulated sureties; or, 3d, whether by agreement the first contract was so far modified, as to be made executory,— Thomason’s right to the slave not to attach until he executed and tendered the proposed note. If either the first or the second proposition be affirmed by the jury, the plaintiff, on a suitable complaint, will be entitled to a verdict. The third proposition would entitle the defendant to a verdict.

"We need not apply these principles to the several charges given and refused. The third charge asked by defendant should have been given, and its refusal was error. The third charge given by the court was also erroneous, but it was not excepted to.

We have made no allusion to those assignments of error which seek to charge Dill for tortiously withholding the possession. The testimony shows that the slave remained with him, in each instance, by Thomason’s permission.

Neither is there anything in this case, which justifies the application of the doctrine of estoppel. — Edmondson v. Montague, 14 Ala. 371; Andrews v. McCoy, 8 Ala. 720; Clements v. Loggins, 2 Ala. 514 ; Ware v. Cowles, 24 Ala. 446; Finn v. Barclay, 15 Ala. 626; Griggs v. Woodruff, 14 Ala. 9; Sweet v. Jacocks, 6 Paige, 355; Mosely v. Lane, 27 Ala. 62.

For the error above pointed out, the judgment of the circuit court is reversed, and the cause remanded.

Waleer, J., not sitting.