Bell, Rogers & Zemurray Bros. v. Jenkins

• Decision Date: 23 October 1930
• Docket Number: 7 Div. 969.
• Parties: BELL, ROGERS & ZEMURRAY BROS. v. JENKINS.
• Court: Alabama Supreme Court

130 So. 396

221 Ala. 652

BELL, ROGERS & ZEMURRAY BROS. v. JENKINS.

7 Div. 969.

Supreme Court of Alabama

October 23, 1930

Appeal from Circuit Court, Clay County; E. P. Gay, Judge.

Action on a promissory note by Bell, Rogers & Zemurray Bros. against W. D. Jenkins. From a judgment for defendant, plaintiff appeals.

Transferred from Court of Appeals.

Reversed and remanded.

Pruet &amp Glass, of Ashland, for appellant.

Hardegree & Cockrell and C. W. McKay, all of Ashland, for appellee.

FOSTER J.

"In order to let in evidence of a collateral agreement between the parties, such agreement must be consistent with the terms of the writing; if the evidence tends to vary or contradict the terms of the written instrument, or to defeat its operation, it cannot be received." 22 Corpus Juris 1248.

But it is equally well settled that evidence of a collateral parol agreement about the same matter as that of the writing, but which does not vary or contradict the writing, is admissible upon proper pleading. Middleton v. Alabama Power Co., 196 Ala. 1, 71 So. 461; Roquemore v. Vulcan Iron Works, 151 Ala. 643, 44 So. 557; Maness v Henry, 96 Ala. 454, 11 So. 410; Jefferson County Sav. Bank v. Compton, 192 Ala. 16, 68 So. 261; Mid-Cont. Life Ins. Co. v. Beasley, 202 Ala. 35, 79 So. 373.

In this case it is claimed that the payee and mortgagee of a note and mortgage upon crops agreed, at the time of taking the note and mortgage given as the price of seed and fertilizer to make a crop, that he would purchase the potatoes when ready for the market at the market price. This does not in any manner vary or contradict the terms of the note and mortgage, but is a collateral agreement relating to the subject-matter of the mortgage, and our judgment is that the court properly admitted evidence of such agreement on the issue of set-off or recoupment.

While the rulings of the court on the question we have discussed were consistent with our conception of the law, we find that there appear reversible errors in some of the rulings on the evidence, and the charges given for defendant. We think plaintiff should have been allowed to prove that he did offer to buy the potatoes at the market price, but advised that in his opinion the price would advance (10th assignment of error); also that it would take practically the price of the potatoes to gather and market them (11th assignment of error). Also that appellee offered to give a second mortgage on a farm in settlement of the note (17th assignment and 18th assignment). Also, that he told plaintiff's manager that he was going to settle the debt when he could (19th assignment), and that he never denied liability (20th assignment), and that he told Pitts, plaintiff's agent, it was a just and honest debt and that he was going to pay it (22d assignment), and likewise, as shown by the twenty-third, twenty-seventh, twenty-eighth, and twenty-ninth assignments.

We cannot agree with appellee that such evidence is not admissible because the original debt is not denied by defendant. These alleged admissions apparently occurred at a time when defendant contends that by reason of a breach of the contract by plaintiff the resultant damage was sufficient to cancel the entire debt. Plaintiff was denying the agreement or its breach, if made, and claiming that the whole amount was due. If defendant then admitted the existence of the debt, such admissions would tend to corroborate the contention of plaintiff. Whether the proper plea is set-off or recoupment, both of them may now be pleaded without confessing the plaintiff's claim-section 10180, Code-changing the law as stated in May Hosiery Mills v. Munford Cotton Mills, 205 Ala. 27, 87 So. 674. The jury should have the benefit of any admission of liability on the note after the time when it is now claimed that damage from the acts of plaintiff extinguished it.

We conclude that the court correctly permitted defendant to show his...