Garner v. Fite

• Decision Date: 21 May 1891
• Parties: GARNER v. FITE ET AL.
• Court: Alabama Supreme Court

9 So. 367

93 Ala. 405

GARNER v. FITE ET AL.

Supreme Court of Alabama

May 21, 1891

Appeal from circuit court, Chilton county; JAMES R. DOWDELL, Judge.

Action on certain promissory notes by Fite, Porter, Lyles & Co. against John Garner. From an order sustaining demurrers to his special plea defendant appeals.

W A. Collier and W. S. Thorington, for appellant.

Jones & Falkner, for appellees.

WALKER J.

The substance of the matters set forth in the special plea is that, by the written agreement entered into some time prior to the execution of the notes sued on, plaintiff and other creditors promised to grant extensions on their claims if all the creditors would do the same, and if the defendant, with his wife, would execute their joint notes, waiving exemptions, to the several creditors for the debts due them that all the creditors did not agree to this arrangement that, notwithstanding this, defendant, together with his wife, executed and delivered the notes sued on, subject to the terms and conditions mentioned in said agreement. The plea does not allege the execution of any agreement indicating the imposition of conditions upon the operation of the notes other than that, a copy of which is made Exhibit A and which is the agreement about referred to. It is not averred that the notes themselves contained any stipulation that they were to take effect only upon compliance with certain conditions. If the notes were conditional obligations, they would not correspond with the description thereof in the complaint. The plaintiffs sued on unconditional promises to pay. As no issue was made as to the description in the complaint of the notes sued on, it is to be taken as admitted that the alleged conditions were not expressed therein. Of course, the defendant and the plaintiffs could waive the conditions upon which, by the terms of said original agreement, the notes were to be executed and accepted. So far as the conditions were of benefit to plaintiffs, they were waived by acceptance of the notes evidencing as extension, without requiring that the other creditors join in the scheme of extension. The advantage to be secured to the defendant by the carrying out of the agreement was the post-ponement of the time of payments of all his debts. His waiver of this condition in his favor was shown by the delivery of the notes to the plaintiffs, without requiring that the other creditors agree to the proposed extension. So far as the conditions were concerned, the contract was practically abandoned on both sides. The requirements thereof...