Thompson v. Rawles , 33 Ala. 29 ( 1858 )

STONE, J.

—The motion to suppress the deposition of Livingston came too late, and was lightly overruled. McCreary v. Turk, 29 Ala. 244, and authorities cited.

[2.] The circuit court mistook what we consider the legal bearing of the defense relied on in this case. It raised no material question on the eonsidei’ation of the note, for the testimony clearly shows that Mr. Thompson gave to Mr. Bawles, at the time the note was executed, two hundred and fifty dollars in money, the amount for which the note was taken. On this point, the appellant and appellee are agreed. The parties also agree that, at the time the note was executed, there was a eotemporaneous oral agreement in reference to what should be a discharge of the liability imposed by the note. On the terms of that collateral oral agreement, the parties are widely at issue.

As we understand this record, we think the only phase in which this defense could be made available to the defendant, was that considered and settled in the case of McNair and Wife v. Cooper, 4 Ala. 660. The oral agreement, without its performance, was worth nothing. If, however, the parties orally agreed, that if defendant would do a certain thing, it should operate a payment and discharge of the note, and the defendant thereupon did do and perform that certain thing, then the defense was made out. It should have been left to the jury to determine what the terms of the collateral agreement were, and whether defendant had complied with them.

It results from what we have said, that it will not profit the defendant, if he succeed in establishing the impossibility of compliance with the terms of that agreement on his part; in other words, if he prove there is in fact no such outstanding bond or paper, as that which he agreed to procure or deliver up. It is the performance of the collateral agreement, which makes out the defense.

It would seem from the evidence recited in the bill of exceptions, that one of the important inquiries in this case is, what was the paper which Rawles was to procure, or deliver up ? If it was not the paper which he procured from Livingston's agent, but a bond given pursuant to the terms of that agreement, then it seems to be conceded that he never complied with such agreement.

The letter of Livingston to Thompson, so far as it speaks of past or present outside facts, was inadmissible. As evidence of a transfer then made, perhaps it was properly admitted.

What we have said above will sufficiently guide the primary court in another trial.

Reversed and remanded.