Maness v. Henry

• Citation: 96 Ala. 454,11 So. 410
• Parties: MANESS v. HENRY.
• Decision Date: 23 June 1892
• Court: Supreme Court of Alabama

11 So. 410

96 Ala. 454

MANESS v. HENRY.

Supreme Court of Alabama

June 23, 1892

Appeal from circuit court, Marshall county; JOHN B. TALLY, Judge.

Action by A. G. Henry against George L. Maness on a promissory note. The court gave the general affirmative charge for plaintiff and defendant appeals. Affirmed.

Defendant pleaded- First, the general issue; and then, by special pleas, as follows: Second. That the consideration for the said note has entirely failed. In this plea the defendant set out at length the circumstances under which the note was given, and averred that, in consideration of the giving of said note, the plaintiff agreed to release his said mortgage, and also agreed that, should the lands ever be sold for the sum due, he (plaintiff) would furnish the money to buy them in, and defendant should retain his interest in the gin house and attachments. The plea then alleged the sale of the lands, and the failure of the plaintiff to comply with his promise to furnish the money as stated. Third. The defendant pleaded that at the time said action was commenced the plaintiff was due him $400 damages arising from the breach of the promise to furnish him the money to buy in the property, which amount of damages he offered to recoup against the demands of the plaintiff. Fourth. That the cotton press for which the note was partly given was never delivered to the defendant. Fifth. That the plaintiff has since the sale, under the chancellor's decree mentioned above, released the defendant from all liability whatsoever from the note sued on. The plaintiff demurred to the special pleas of the defendant: To the second plea, on the ground that the said plea showed on its face that there was no failure of consideration; that the said plea showed no demands made on the plaintiff by the defendant to advance the money necessary to discharge said incumbrance on the land; that the plea showed no consideration for the promise by plaintiff to furnish the money with which to pay off said incumbrance on said land. To the third plea, that the damages therein claimed were too remote and speculative to authorize their being recouped against the demands of the plaintiff. To the fourth plea, that the said plea showed no obligation on the part of the plaintiff to deliver to the plaintiff any cotton press. To the fifth plea, that the plea failed to aver or show any consideration for said release, and that the said plea did not show how the said release was made. These demurrers were sustained by the court, and the defendant was granted leave to amend. The note was introduced in evidence. On the margin of the face of the note there was written in pencil, after the note was executed, "On D. H Shield's debt." The defendant objected to the notes being admitted in evidence, unless plaintiff would erase the pencil marks. The court overruled this objection, and allowed the note to be introduced without such erasure, and to this ruling defendant excepted.

Brown & Street, for appellant.

Lusk & Bell, for appellee.

WALKER J.

We will notice only such rulings of the circuit court on the plaintiff's demurrers to the defendant's pleas as are claimed in the argument for the appellant to have been erroneous. Without reviewing the grounds of demurrer in detail, the following statement in reference to the several pleas which are noticed in the argument will be sufficient: (1) The agreement relied on in the second plea was to the effect that, in the event of a sale of the land therein mentioned for unpaid purchase money, the plaintiff would furnish the money to buy it in. It is not averred that the plaintiff agreed to buy in the land himself, or that he was to proffer or tender the money to any one else for that purpose without a previous demand upon him. The averments do not show that any obligation in that regard was assumed by the plaintiff in the absence of a request for the money required to buy in the land. The plea fails to show a breach of the agreement by the plaintiff, as it does not allege that any demand was made on him to furnish the money. (2) The third plea is defective in the same particular. It is not alleged that any demand was made upon the plaintiff to furnish the money according to the terms of his agreement. (3) The allegations of the fourth plea do not show that any agreement or undertaking by the plaintiff to deliver the cotton press entered into the consideration for the note sued on. This plea does not connect the plaintiff with the duty to deliver the cotton press to the defendant, and does not allege that it was sold by the plaintiff to the defendant. (4) The fifth plea merely states the legal conclusion that the plaintiff has released the defendant from liability on the note sued on, and does not show that the agreement to release was supported by any consideration. Furthermore, the defendant had the advantage, under other pleas, of the matter set up in this one. (5) Under the second plea as amended, upon which issue was joined, the defendant had full advantage of the matter set up in the sixth plea, assuming that the latter plea sufficiently averred any fact or state of facts constituting a defense. Sustaining the demurrer to it, if error at all, was error without injury. The part of the second plea, as amended, which was stricken out, was merely an averment as to the defendant's undisclosed conclusions and intentions. The thoughts in his mind, not suggested by any conduct or...