Lindsay v. McRae , 116 Ala. 542 ( 1897 )

COLEMAN, J.

The appellees brought suit to recover damages for the breach of the following written agreement: “Louisville, Ala., Nov. 14th, 1890. On or before the first day of November, 1891, we promise to pay ■ to W. & F. McRae, or order, the sum of two hundred dollars, as sureties for D. A. Barlar ; but it is expressly agreed and understood that in case the said D. A. Barlar shall make any payments on a certain note by him this day executed for the said sum of two hundred dollars, payable one day after date to the said W. & F. McRae, said note being given in satisfaction of certain mortgage executed by D. A. Barlar, then the undersigned shall not be held responsible for any amount under this instrument except such amount as may be due on the note so executed this day by the said D. A. Barlar, and to further secure whatever amount may be due on said note given by D. A. Barlar, we hereby jointly and severally waive all exemptions, and agree to pay a reasonable attorney’s fee in the event the services of an attorney are necessary.

“Witness (Signed) “L. T. Lindsay.”

“A. A. McDonald. “J. D. Lindsay.”

The defendant contended, and that is the only defense insisted upon here, that the agreement was “a promise to answer for the debt, default or miscarriage of another,” that it does not express a consideration in writing, and therefore is void under the statute of frauds. — Code of 1886, § 1732, subdiv. 3, (Code of 1896, § 2152, subdiv. 3). The evidence showed that plaintiffs held a claim against D. A. Barlar, secured by mortgage on personal property and which on the 14th of November, 1890, had matured ; that on that day Barlar executed his promissory note to them for two hundred dollars, which was introduced in evidence, and defendants executed the contract sued on, the consideration of said note of Barlar and said contract of defendants being that plaintiffs would surrender and discharge the mortgage against Barlar; that- the mortgage was surrendered and discharged, and that Barlar has paid no part of the debt evidenced by his note and referred to in defendant’s agreement. The parol evidence offered by plaintiff to show the consideration of the agreement executed by defendants was objected to, and an exception reserved to the overruling of the objection. The debt of Barlar secured by the mortgage was not paid by the new note executed by him, or the contract of surety-ship of defendants. The debt continued. We are of opinion that the obligation of defendants was an agreement to answer for the debt, default or miscarriage of another within the statute of frauds. — Thornton v. Guice, 73 Ala. 321; Underwood v. Lovelace, 61 Ala. 155. The surrender of the mortgage was a sufficient consideration to support the contract of defendants ; and the question is whether such consideration is sufficiently expressed in the agreement itself to relieve it from the operation of the statute of frauds.

The agreement on its face shows that Barlar executed his note to plaintiffs in discharge of a mortgage the plaintiffs had against him, and it shows on its face that defendants on the same day obligated themselves to pay only so much of said note of Barlar as he failed to pay. These provisions are clearly stated in the agreement. Would the law conclude from these facts that the mortgage debt was satisfied in consideration of the defendants'agreement? It says that the note of Barlar “was given in satisfaction of the mortgage,” and it further-states that defendants agreed to pay Barlar’s note if he did not pay it, but the agreement excludes the idea that the mortgage debt was surrendered and discharged in consideration of the agreement of the defendants. Certainly a consideration is not expressed in the agreement,. It dbes not appear that the defendants were to derive any benefit from the surrender or discharge of the mortgage against Barlar. — 8 Am. & Eng. Encyc. Law, 681; Westmoreland v. Porter, 75 Ala. 452, 459. This can only be shown by parol evidence. The court admitted parol evidence to establish that such was the consideration, and having established by parol the consideration, ■ in effect held, that the obligation was binding on the defendants. It is not-permissible to take a contract with-* out the influence of the statute of frauds by proving by parol evidence a valuable consideration, which the statute itself declares must be expressed in writing. That would defeat the purpose of the statute. The contract in this case and the evidence come strictly within the principle applied to the contract in the case of Foster v. Napier, 74 Ala. 393; and a careful reading of the case of Westmoreland v. Porter, 75 Ala. 452, 459, will show that case to be in harmony.

Reversed and remanded.