Doss v. Peterson , 82 Ala. 253 ( 1886 )

SOMEBYILLE, J.

— 1. The notes sued on being payable unconditionally, and at a time certain, it was incompetent to prove by parol testimony any promise by the plaintiff, contemporaneous with, or antecedent to the execution of the notes, stipulating for a postponement of the time of payment. Such evidence contradicted the terms of these written instruments, and varied their legal effect, and was properly excluded by the court.

2. The larger of the notes sued on would be supported by a legal consideration, although a.part of it was contracted during the life-time of the deceased husband of Mrs. Doss; such part being for articles of comfort and support of the household, for which her statutory separate estate would have been liable under the provisions of section 2711, of the Code of 1876, then in force. Her promise to pay such a claim, entered into after the termination of her coverture, would be valid and binding on her, especially with an indulgence of delay in payment.— Vance v. Wells, 8 Ala. 399.

3. The estate of the original debtor being, moreover, entirely released and discharged, and the promise of the defendants being substituted in place of that of the discharged debtor, the new promise was an original undertaking; and the time of payment being extended, it was supported by a sufficient consideration. — Hixon v. Hetherington, 57 Ala. 165; Thornton v. Guice, 73 Ala. 321, and cases cited; Underwood v. Lovelace, 61 Ala. 155.

4. It is only where an account is the foundation of a suit that the statute provides for a bill of particulars, or “a list of the items composing it.” — Code, 1576, § 2984; Hayes v. Woods, 72 Ala. 92. The present suit being on promissory notes, not on a mere account, it is not affected by this statute; and the rulings of the court on this particular phase of the case could not be prejudicial to appellants, on the ground urged, the defendants not being entitled to demand a bill of particulars. , ,

The other objections urged are not well taken.

Affirmed.