Foy & Bro. v. Dawkins , 138 Ala. 232 ( 1902 )

DOWDELL, J.

Tlie contract set out in haec verba in the complaint, and for an alleged breach of which the suit is brought, is somewhat indefinite and obscure in terms, but capable of being rendered certain by matter aliunde. The consideration set forth in the contract for the guaranty given was the release by the plaintiffs of certain property, upon which they had a mortgage, and which they had seized under process. The consideration was a valuable one and sufficient to support a promise. In consideration of the release, the defendants promised to hold the plaintiffs “harmless” in the sale of the remaining property held by plaintiffs under their mortgage, and in addition to the promise to hold “harmless” agreed “to pay whatever further claim the said estate may have therein”; that is, according to the averments of the complaint, in the remaining property . held by plaintiffs under their mortgage. The complaint avers a breach of the contract, in that the defendants failed and refused to hold the plaintiffs harmless in the sale of said property, and that said property was lost to plaintiffs by a superior claim and title in another. The averments of the complaint as amended sufficiently, set forth a cause of action, and was not subject to any of the grounds of demurrer interposed: Tlie court erred' in

sustaining the demurrer.

. The judgment will be reversed and the cause remanded. ’