Harper v. Columbus Factory , 35 Ala. 127 ( 1859 )

R. W. WALKER, J.

The record does not inform us when the pleas were filed; but the summons and complaint were issued in September, 1857, returnable to the spring term, 1858. The trial took place at the fall term, 1858 ; and the bill of exceptions states that, “ on the trial of the cause,” the defendant moved to dismiss the suit, because the plaintiff had failed to give security for the costs. The motion evidently came too late. — Ex parte Bobbins, 29 Ala. 74; Weeks v. Napier, 38 Ala. 568.

2. The defendant was permitted to read in evidence a written transfer, executed by the payee of the note, and to show by a witness that the same was a part of the consideration on which the note in suit was given. He then offered to prove, that the writing just referred to was intended as a transfer of certain judgments, the failure of the constable to collect which constituted the consideration of the confessed judgments against the defendant as the surety of the constable ; and, in connection with this evidence, he proposed to show that, after the giving of the note sued on, and before it was passed to the plaintiff j Davis, the payee, collected nearly the whole amount of the judgments thus transferred by him to the defendant, and receipted therefor in his own name. The court, however, excluded all these parol explanations of the written transfer, and construed it as referring alone to the judgments rendered by confession against the defendant.

We think that the court erred in excluding the parol evidence offered for the purpose of identifying the judgments to which the transfer was intended to apply, and that it also erred in its construction of that instrument. The language employed is, “I hereby transfer judgments to him, on which he has acknowledged judgment as security for Samuellngram, constable, &c., * * and authorize him to collect the same and receipt,” &c. It is obvious that this was not designed as a transfer to the defendant of the judgment confessed by him, but as an assignment to him of the judgments on which the confessed judgment was founded. To authorize the defendant to collect and receipt for judgments against himself, would be simply absurd. The writing is rendered sensible by holding it to refer, not to the judgments against the defendant himself, but to judgments against third persons, on which the judgments against the defendant were founded. The question, then, is, on what judgments were the confessed judgments founded? The writing itself does not show, and in all such cases, parol evidence is admissible, to explain and apply the written instrument, and identify the particular matters intended to be embraced by the general terms employed. — Cowles v. Garrett, 30 Ala. 341; Casey v. Holmes, 10 Ala. 286 ; Lockard v. Avery, 8 Ala. 502.

3. If the transfer of particular judgments, by Davis to the defendant, constituted a part of the consideration for the note ; and the former, after this transfer, and before the plaintiff obtained the note, collected any part of the transferred judgments, this would show a failure, fro tanto, of the consideration on which the note was given, and would be a defense, to that extent, to this action.

The judgment is reversed, and the cause remanded.