Lehman v. Levy , 69 Ala. 48 ( 1881 )

STONE, J.

The decree of the chancellor in this cause pronounced the deed under which appellee claimed title, to be only a mortgage security, and from that decree no appeal has been prosecuted. The questions mooted here arise out of the report of the register, ascertaining the amount due. Exceptions to the register’s report were filed by the appellant, raising two questions: First, that part of the claim was a note given for the debt of another, and that the note thus given was void under the statute of frauds, because it failed to express the consideration upon which it was given. Second, that there was usury in the transaction, and the register failed to allow appellant the benefit of it as a credit. The testimony bearing on each of these questions was given orally before the register. It is in irreconcilable conflict. The testimony for appellant tends to maintain her view of this question, while that of the appellee stands diametrically opposed to each of the claims set up by appellant. The testimony can not be reconciled. The register had the witnesses present before him, and had much better means of determining their credibility than we can have. The finding of a register on testimony thus given, comes before a revising court with strong presumption of its verity. We will not reverse it, unless the preponderance of evidence against its correctness is so strong, that a judge at nisi prius would feel authorized to set aside a verdict rendered on similar testimony. Smith, Ex'r, v. Inman, Adm'r, at last term. This case falls ■far short of that rule. In fact, we are not able to affirm there is a preponderance of evidence in favor of appellant’s views.

¥e said above that the testimony for appellant tends to maintain her view of these questions. It is certainly in direct conflict with the testimony of appellee. It can scarcely be said to present the case of a promise to pay the debt of another, which our statute requires to be in writing signed, and expressing the consideration. The language of this testimony is, “I did not get the first $200 testified to by witness Levy. I and my wife simply went security for the debt of our son, Mark Lehman. My son brought me a note for $200, and said he owed Levy for fixing up his office, and asked us to sign it. We did so as security for him.” A note signed, under our statute imports a consideration; and where parties sign as sureties,' cotemporaneously with the principal, no independent consideration moving to the surety is necessary to bind him: Moreover, there is not enough in this testimony to repel the idea that this was an original undertaking, or a novation upon some new and sufficient consideration. — Dunbcvr v. Smith, 66 Ala. 490. It is only when both liabilities continue to exist — the original debt as a subsisting liability, and the new special promise to-answer for such “ debt, default or miscarriage ” — that the statute requires the “ agreement, or some note or memorandum thereof, expressing the consideration; [to be] in writing, and subscribed by the party to be charged therewith, or some other person by him thereunto lawfully authorized in writing.” — Code of 1876, § 2122; Faires v. Lodanc, 10 Ala. 50; Perrine v. Leachman, 10 Ala. 140; Oliver v. Hire, 14 Ala. 590; Blount v. Hawkins, 19 Ala. 100; Martin v. Black, 20 Ala. 309; S. C. 21 Ala. 721; Ragland v. Wynn, 37 Ala. 32; Rutledge v. Townsend, 38 Ala. 706; Bowen v. Kurtz, 37 Iowa, 239; Packer v. Benton, 35 Conn. 343; Browne, Stat. Frauds, § 193.

There is a third exception to the register’s report, that he ■“ erred in not giving complainants credit for $8.00 which Levy says- he received on account of interest.” Looking into the evidence, and the register’s calculation of interest, this exception appears to be well taken. The register computed interest on each loan from the time it was made, and allowed no credit for this payment. In fact, computing interest on the two notes from the time they severally matured, and the result is an error prejudicial to appellant, in excess of eight dollars. But there is no exception which authorizes us to go beyond the eight dollars. We therefore correct the report, and declare and decree the sum due defendant at the time the report was confirmed — July 6, 1881 — to be ($572.35) five hundred and seventy-two dollar’s and thirty-five cents. In all other respects the decree of the chancellor is affirmed, and the register will proceed to enforce the same for said corrected sum, as directed and ordered by the chancellor. Let the appellee pay the costs of appeal in this court and in the court below.

Reversed and rendered.