Wallace v. Myrick , 1 Ala. App. 572 ( 1911 )

de GRAFFENRIED, J.

The plaintiff (¡appellant here) brought suit against the defendant for money alleged" to be due for work and labor done for the defendant, at his request, by the plaintiff. • The defendant filed, among others, two pleas stating in substance that the plaintiff should not recover because the plaintiff had released and discharged the defendant from any liability to him on account of the indebtedness sued on, by accepting in full discharge of the defendant’s liability to him an agreement on the part of one W. F. Cooper to pay the said indebtedness. The plaintiff demurred to those two pleas of the defendant, but the court overruled the- demurrer; and while the plaintiff excepted to the ruling of the court on the demurrer, and here assigns such ruling as error, the plaintiff does not insist in his argument upon the error so assigned, and the court is of the opinion that the pleas set up a substantial defense to the action, and that the court below committed no error in overruling the demurrers to them.

The testimony was conflicting as to whether the plaintiff had accepted the agreement of Cooper to pay defendant’s indebtedness in discharge of defendant’s liability to him, and this issue was for the jury. There was a judgment in the court below for the defendant, on the verdict of the jury.

The court, at the written request of the defendant, gave the following charge to the jury: “Charge No. 1. The court charges the jury that there is no dispute in the evidence that W. F. Cooper, at the time he purchased the handle machinery, agreed that purchase price of said machinery was $2,500; that $2,000 of the same was to be paid defendant, for which a mortgage was executed to the defendant for said $2,000; that the remaining $500 was to be paid the plaintiff. If the jury are reasonably satisfied from the evidence that plaintiff consented thereto, and accepted a payment of $50 from W. F. Cooper, then the plaintiff is not entitled to recover in this case.” The giving of this charge was error. It was not sufficient, in order that the defendant should be relieved from his liability to the plaintiff, if he was indebted to the plaintiff, that there should have been given to the plaintiff by the defendant an agreement on the part of W. F. Cooper to pay the debt; but there must have been, in order that the defendant should have been released from liability to the plaintiff, an agreement on the part of the plaintiff to accept the promise of W. F. Cooper to pay the debt in full satisfaction and discharge of the defendant’s indebtedness.

It will be noticed that charge No. 1 ignores the legal requirement /that the plaintiff should have accepted Cooper’s agreement to pay the debt in full discharge of the defendant’s liability to him, and withdraws from the consideration of the jury plaintiff’s testimony that he expressly stipulated that, in the event Cooper did not carry out his agreement, defendant, nevertheless, should remain liable. The charge was faulty, in that it failed to hypothesize that essential averment of the plea.—McWilliams v. Phillips, 71 Ala. 80-82.

For the error indicated, this cause is reversed and remanded.