Head v. Baldwin , 83 Ala. 132 ( 1887 )

STONE, C. J.-

— -The present case was an issue formed on a contested answer hi garnishment. The affidavit, process of garnishment, its service, and affidavit contesting the answer,, are each parts of the record, and they all prove this. The judgment-entry tends to confirm it, and the bill of exceptions discloses proof made, all of which is pertinent to such issue. The judgment shows it was rendered, not on admissions made in the answer, but on the verdict of the jury rendered in the cause. It sufficiently appears that the issue tried was framed on a contested answer in garnishment, and the materiality of the question raised is thus shown. We need not inquire whether the answer is a part of the record.

The alleged indebtedness, which the present suit sought to condemn, was evidenced by a note bearing date December 25, 1878, signed by W. B. Harkness, the garnishee’s intestate, and payable to J. A. Harkness, the judgment debtor. J. A. Harkness is the -son and one of the distributees of W. B. Harkness, and the object of the present suit was to condemn the liability evidenced by the note, to the satisfaction of the judgment against J. A., the son.

The only evidence on the trial was the note itself, and the testimony of the garnishee as a witness. The garnishee’s testimony related to the conduct and conversation of J. A., the judgment debtor, and asserted creditor of the estate. If the testimony of the garnishee sets forth the full and only consideration of the note, it can not be regarded as a valuable consideration, but the promise was a niulum pactum. It shows neither profit nor benefit secured to the promisor nor the surrender of either right, or valuable thing by the promisee. It fails even to show that the promisee contemplated removing to Texas, and abandoned that purpose in consideration of the promise made by his father. The witness states another circumstance calculated to raise a suspicion of the bona fides of the claim; and there is no testimony of any actual consideration for the note. To uphold a promise to pay money, there must be a benefit to the promisor, or' a detriment to the promisee. — Rutledge v. Townsend, 38 Ala. 706.

The bill of exceptions in this case states it contains all the evidence, and it tends to show there was no consideration for the note. — Kirksey v. Kirksey, 8 Ala. 131; Forward v. Armstead, 12 Ala. 124; Hubbard v. Allen, 39 Ala. 283.

The Circuit Court erred in the charge given.

Reversed and remanded.