Jackson v. Bush , 82 Ala. 396 ( 1886 )

SOMERVILLE, J.

— The complaint avers a joint contract, or cause of action, in favor of the plaintiff against the defendants, Price and Jackson. To authorize a recovery, the evidence must establish the contract or promise as alleged, not another one different in legal effect. The promise, in other words, must be shown to have been joint and not several. 'Separate and distinct promises to pay, made at different times, will not support a joint action against the separate promisors, although they may impose a separate liability on each of the defendants. — Jones v. Englehardt, 78 Ala. 505; Walker v. Insurance Co., 31 Ala. 529.

One or more rulings of the court were repugnant to this principle, and were erroneous.

The promise of the defendant Jackson to pay the plaintiff for the item of repairs on his farm, was. not absolute, but conditional. Having agreed to give the job jointly to three persons, who are designated in the bill of exceptions as “ the King boys,” Jackson was under obligation to give them the preference.. The promise was to pay the plaintiff for making such repairs, provided “ the King boys ” would not make them. It was not sufficient for the plaintiff to show that only one of them declined the job. He should have shown that it was offered to each of the three, or else a good excuse should have been given for a failure to do so. It may be that the absence of one of these young men from the county, if proved, would have been a sufficient excuse for not communicating with him in reference to the matter; and so with the alleged unwillingness of another to do the work. But these excuses could not be proved by the mere declarations of the third brother, which were hearsay, and inadmissible for any purpose as evidence, The ' court should have excluded such declarations from the jury.

Reversed and remanded.