Herrington v. Central Soya Co., Inc., 80-740
Decision Date | 16 July 1982 |
Docket Number | No. 80-740,80-740 |
Parties | Bonnie HERRINGTON and Edgar Burt v. CENTRAL SOYA COMPANY, INC. |
Court | Alabama Supreme Court |
Charles S. Doster of Merrill, Porch, Doster & Dillon, Anniston, for appellants.
C. E. Isom of Wilson, Bolt, Isom, Jackson & Bailey, Anniston, for appellee.
The trial of this cause resulted in a jury verdict for Defendants Herrington and Burt on their counterclaim alleging a contract between Defendants and another, the obligations of which Plaintiff Central Soya allegedly agreed to fulfill. Central Soya's motion for a new trial was granted; Defendants' motion for reconsideration of the order granting a new trial was denied; and Defendants filed this appeal.
In denying Defendants' motion for reconsideration, the trial judge set out a summary of the facts of the case and the grounds for his decision to grant a new trial:
The applicable portion of the Alabama Statute of Frauds (Code 1975, § 8-9-2) reads:
The cases pointed out in Central Soya's motion for new trial, and referred to by the trial judge, reflect this Court's interpretation of subsection (3) of the Statute of Frauds. Those cases, and countless others, distinguish between a "collateral" agreement and an agreement that is "original" in nature:
Clark & Wadsworth v. Jones, 85 Ala. 127, 130 (1887).
See, also, Gregory v. Hardy, 53 Ala.App. 705, 304 So.2d 209 (1974); Westmoreland v. Porter, 75 Ala. 452 (1883); Puckett v. Bates, 4 Ala. 390 (1842).
This distinction between "original" and "collateral," focuses on the nature of the promise made.
"A promise which is within the Statute is often said to be 'collateral'; if not within the Statute, it is called 'original.' 'The terms collateral or original promise did not occur in the Statute, and have been introduced by courts of law to explain its objects and expound its true interpretation.'
"Although the terms 'original' and 'collateral' do not obviate the difficulty of determining the ultimate question as to whether a promise is or is not within the Statute, they afford a convenient mode of expression for distinguishing between the cases within and those without the Statute: 'The terms original and collateral promise, though not used in the Statute, are convenient enough to distinguish between the cases where the direct and leading object of the promise is to become the surety or guarantor of another's debt, and those where although the effect of the promise is to pay the debt of another, yet the leading object of the undertaker is to subserve or promote some interest or purpose of his own.' " (Emphasis supplied.) S. Williston, A Treatise on the Law of Contracts § 463 (W. Jaeger 2d ed. 1960).
The sole issue presented on this appeal, then, is the propriety of the trial judge's granting the motion for new trial on the grounds that his oral charge to the jury with regard to the Statute of Frauds aspect was erroneous and thus caused "severe detriment" to Central Soya.
It is unquestioned that:
Walker v. Henderson, 275 Ala. 541, 544, 156 So.2d 633 (1963). When it is apparent, then, that there has been a serious miscarriage or a total failure of justice, the trial judge is "under a duty to set aside [the verdict] and grant a new trial." State v. Oliver, 288 Ala. 32, 256 So.2d 866 (1972). Further, once that power has been exercised by the trial judge, its consequences are attended by a presumption of correctness, and the trial judge's decision will not be overturned by the appellate court unless the evidence of record plainly and palpably shows that the trial court was in error. Hill v. Cherry, 379 So.2d 590 (Ala.1980).
We recognize the long-standing rule as stated by the Court of Civil Appeals in American Service Mutual Insurance Company v. Grizzard, 356 So.2d 191 (Ala.Civ.App.1978):
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