Knox v. Rivers Bros. , 209 Ala. 308 ( 1923 )

"When there is a promissory note, or other written obligation to pay money, and contemporaneously there is an oral agreement that the obligation is to be discharged by the doing of something other than the payment of money, so long as the contemporaneous, oral agreement remains executory, it is wholly inoperative, and no defense whatever to a suit on the obligation." Patrick v. Petty, 83 Ala. 420, 3 So. 779; Tuskaloosa C.-S. Oil Co. v. Perry, 85 Ala. 158, 167, 4 So. 635; Lakeside Co. v. Dromgoole, 89 Ala. 505, 509, 7 So. 444. See, also, Beard v. White, 1 Ala. 436; Clark v. Hart, 49 Ala. 86.

Those decisions are, of course, based on the familiar rule which forbids the proof of prior or contemporaneous parol agreements to alter, contradict, or add to the terms of written agreements which are on their faces complete in themselves.

But, "there is a marked difference between parol evidence which goes to vary, contradict or add to written agreements which intelligibly speak the intention of the parties, and which they have adopted as furnishing evidence and full expression of their intention, or which changes the legal effect of such agreements, and parol proof which shows that the instrument is altogether void, or that it never had any binding efficacy, or the want of consideration, either in whole or in part. While the first is inadmissible, the latter is constantly received. 1 Greenl. E. § 284." Corbin v. Sistrunk, 19 Ala. 203,205. And in Jefferson County Sav. Bk. v. Compton, 192 Ala. 16,18, 68 So. 261, 262, the general rule is stated that —

"Where the terms of a written contract are not thereby varied or contradicted, it is always competent, as between the immediate parties, to show the real consideration for a promissory note, and to show by parol evidence the terms * * * upon which it is payable, or by which payment may be avoided."

In 8 Corp. Jur. 737, § 1015, the rule is thus stated:

"If a note, or the delivery thereof, is conditional, no recovery can be had thereon unless the condition has been fulfilled, or unless performance of the condition has been waived, in an action by the payee or one not a holder in due course. So, as between the parties to a bill or note, * * * collateral agreements between them may be set up as a defense, provided there is a consideration therefor, subject to the exception that a written instrument cannot be contradicted by parol, and subject to the rules already considered as to the validity and effect of such agreements."

In Corbin v. Sistrunk, 19 Ala. 203, the action was on a note given for personal services to be rendered to the maker by the payee, but his employment was conditioned upon his procuring a recommendation from a designated person. Said the court:

"In the case before us, the defendant gave her note, thus executing the contract upon her part, and the writing evidences the terms of the contract, so far as to be performed by her, but the contract on the part of the plaintiff was altogether executory. He was to produce the recommendation of his former employer, * * * and serve as overseer for the year 1850. This constituted the consideration for the note sued on, and if he failed to perform his part of the contract, the plaintiff could not require a performance on the part of the defendant. The undertaking to obtain the recommendation from * * * was a condition agreed upon as precedent to his entering upon the service. It formed the first * * * consideration, without which * * * the whole consideration failed, and the contract became inoperative."

The rule is stated and applied in Hart v. Life Ass'n, 54 Ala. 495,498; Baker v. Boon, 100 Ala. 622, 13 So. 481; Haas v. Com. Trust Co., 194 Ala. 672, 69 So. 894.

Tested by the foregoing principles, pleas 3 and 4 were not subject to the objection that they seek to vary or contradict the terms of a written contract by evidence of a parol contemporaneous agreement.

The demurrer makes the objection also that the pleas do not show a breach of plaintiff's alleged obligation, except as a conclusion only; and, specifically, that plaintiff's alleged negotiation of the bill of exchange was no violation of his alleged agreement to present it to the drawee and accept payment as a credit on his own indebtedness to the drawee.

We think, however, that the allegation that plaintiff transferred the bill of exchange to a third party, instead of conforming to the condition stated, sufficiently shows a breach of the condition, since such a transfer shows that he had parted with the ownership of the bill, and thereby, prima facie at least, placed it beyond his power to fulfill his obligation in the premises.

That obligation on the part of plaintiff was an essential part of the consideration for defendant's purchase of the turpentine cups, and its breach justified defendant's rescission of his contract of purchase.

Whether or not the pleas sufficiently show a return of the articles purchased is not raised by any special ground of demurrer, and need not be considered.

The other grounds of demurrer were either general in form, or obviously without merit.

We find no error in the record, and the judgment will be affirmed.

Affirmed.

ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.