Aultman & Co. v. Fletcher , 110 Ala. 452 ( 1895 )

HEAD, J.

The action of the .circuit .court, in giving the affirmative charge for the defendant, is sought to be maintained here, upon the ground that the statute of frauds constituted a bar to the action. A review of this ruling will necessitate a consideration of the various phasds of the evidence, and the application of the proper principles of law thereto ; and if it be ascertained, that there was any aspect of the case in which the plaintiff was entitled to recover, if the jury believed the evidence tending to support it, then it will follow that the court erred in giving the general charge -for the defendant.

The debt of Williams, which it is supposed the. defendant promised to pay, was for $2,000, the purchase price of the machinery, and was evidenced by four notes. It appears, however, from the undisputed testimony that the defendant did not, directly or indirectly, promise to pay those notes, or the debt for which they were taken, or any part thereof. His agreement, made with the full Consent and concurrence of Williams, the vendee,was to pay the plaintiff whatever indebtedness of his own should accrue, on account of the sawing of timber, which it was contemplated Williams should do for the defendant, and which he afterwards actually did for him. This was, in no sense, a promise to answer for the debt of another, but simply'a promise by the defendant, to pay his own debt in a particular way. To sucha case, the statute of frauds has no application.—Woodruff v. Scaife, 83 Ala. 152. “The statute of frauds was not enacted to prohibit persons against the payment of their own debts, but the debts of others.”— Files v. McLeod, 14 Ala. 611. It is true that no action could have been maintained, upon the promise of the defendant, until Williams carried out his agreement to do the sawing; yet when that was done, the defendant’s promise became capable of legal enforcement, at the suit of the plaintiff. It having been a part and parcel of the contract by which Williams did the sawing, that the compensation therefor should be paid, not to him from whom the consideration moved, but to the plaintiff, there was a present moving consideration of value which took the case without the influence of the statute of frauds.—Coleman v. Hatcher, 77 Ala. 221.

There was another provision of the tri-lateral agreement, made at the time of the sale of the machinery, which must not be overlooked. The witness, Jones, who represented the plaintiff in the transaction, testified that the sale was made "with the distinct understanding that Williams should be credited on said debt with whatever sum would be coming to him for the sawing he should do for Fletcher.” It will be observed that it is not stated that Williams should be credited with what Fletcher should actually pay the plaintiffs, but with "whatever would be coming to him for the sawing he should do the words, "whatever would be coming to him,” meaning simply the amount that would be due. Under this stipulation, the reduction of the debt Williams owed the plaintiff, to the extent of the sawing he did for the defendant, would not depend upon the actual payment by the defendant to the plaintiff of the amount; bub, upon the performance by Williams of his part of the agreement, and so soon as he did the sawing for Fletcher, his debt became pro tanto extinguished, and the obligation of Fletcher to the plaintiff, by way pf novation, to that extent, substituted in its stead. ‘ ‘None of the courts raise any controversy about these cases, where the original debtor is discharged and the debt released, and a new debt and debtor substituted in their stead by a contract in the nature of novation. This class of cases is universally excepted from the influence of the statute of frauds.”—Westmoreland v. Porter, 75 Ala. 452.

A careful examination of the facts and the points actually decided in Clark v. Jones, 85 Ala. 127, will disclose that there is nothing therein in conflict with the views we have above expressed. In that very case, Clopton, J., says : “A party may make a valid oral contract, which operates to create a new debt of his own, if founded on a new consideration, though the effect of the payment is to pay another debt. In order, however, to have this effect, the essence of the new undertaking must be the payment of the promisor’s own debt by paying the debt of another.” We are clearly of the opinion that the statute of frauds constituted no defense, and that the circuit court erred in giving the affirmative charge for the defendant. If the jury believed the evidence, the plaititi it's, and not the defendant, were entitled to a verdict.

It appears from the testimony of Clay, that by agreement with Williams the plaintiffs retook the machinery, at a certain valuation, and credited the stipulated amount upon his debt. Counsel for appellee does not rely, in his brief, upon this fact, to justify the ruling of the lower court. Inasmuch, however, as the cause must be remanded for another trial, we deem it not inappropriate to say that such retaking of the machinery interposes no obstacle to a recovery by the plaintiff in this action. It is undoubtedly the law that, when title to property is reserved by a vendor, and a conditional sale thus made, the vendor may not reclaim the property, and, in the absence of an agreement, still maintain assumpsit for the price.—Shines v. Steiner, 76 Ala. 458. It is, however, perfectly competent for the parties to agree, as they did in this case, that the retaking shall not wholly discharge the debt. This agreement would be binding upon Williams, the vendee, and a fortiori, could in no wise impair the obligation of the defendant to pay his debt, which he owed the plaintiffs, for the sawing done by Williams.

Reversed- and remanded.