Moore v. First Nat. Bank

Citation36 So. 777,139 Ala. 595
PartiesMOORE v. FIRST NAT. BANK OF FLORENCE.
Decision Date11 February 1904
CourtSupreme Court of Alabama

Appeal from Circuit Court, Lauderdale County; Ed. B. Almon, Judge.

Action by the First National Bank of Florence against Samuel E Moore. From a judgment for plaintiff, defendant appeals. Affirmed.

This suit was brought by the appellee, the First National Bank of Florence, against the appellant, Samuel E. Moore, and was instituted on October 18, 1898. The complaint as originally filed contained two counts. The first count claimed the sum of $4,000 due by a count stated on, to wit, November 1, 1893. The second count claimed the like sum under an agreement entered into between the plaintiff and defendant and one H C. Nichols on or about the 6th day of March, 1893, by which plaintiff undertook and agreed to procure for defendant the contract for the building of the Cherry Cotton Mills building in Florence, and Nichols agreed to confess judgment in favor of the defendant in the circuit court of Lauderdale county Ala., for the sum of $16,604.50, and in consideration of the procurement of the said contract to build the said mills, and the confession of the said judgment by Nichols in favor of defendant, the defendant agreed and undertook to pay plaintiff the sum of $4,000, in which sum Nichols was indebted to plaintiff. The count then avers that plaintiff did procure for defendant the contract for said mill, that Nichols did confess judgment as aforesaid, and that said sum of money became due on the 1st November, 1893. Subsequently on the 11th of March, 1899, the plaintiff filed two amended counts to his declaration, numbered respectively 3 and 4. At the trial of the cause at the September term, 1899, of the said circuit court, and after the evidence had closed, and before the argument had commenced, the plaintiff announced that it withdrew all counts but the fourth, on which it relied. In the fourth count the averments of facts showing plaintiff's claim were as follows: That prior to the 21st February, 1893, one H. C. Nichols had a contract to build at Florence a cotton mill, and during the construction of this mill became indebted to the bank in the sum of $4,000, which was used in the purchase of material and the payment of labor; that, prior to the date mentioned, work on the mill had been suspended or abandoned, and that at the time the said Nichols had on hand a large amount of material, the larger part of which had been purchased with the money loaned by the bank; that, on or about the date mentioned, Nichols made an arrangement to build the Cherry Cotton Mills, having agreed upon the terms of a contract, "and the defendant had agreed with the said Nichols to give him the necessary financial backing to construct the building last aforesaid on a consideration agreed upon between them, and the said Nichols had agreed with the plaintiff that the debt due from him to plaintiff was to be paid out of the contract price of the building of said mill for Cherry Cotton Mills, and after the 21st February, 1893, and about the 6th March, 1893, the said Nichols made arrangement with defendant that he, said Nichols, would give up all his rights under the said arrangement and contract with the said Cherry Cotton Mills and would allow said defendant to make said contract in his place and stead, and that said Nichols' foreman would be allowed to work for and with the defendant on said contract to be made by him with said Cherry Cotton Mills, and the said Nichols was to confess a judgment in favor of the defendant in the circuit court of Lauderdale county, Ala., which was to be used in acquiring the title to the said material purchased in part with the money advanced by plaintiff as aforesaid to said Nichols; and the said defendant on his part agreed with the said Nichols, in consideration of the said agreement and undertakings of the said Nichols made with him as aforesaid, to assume and pay for said Nichols the said debt of $4,000 due plaintiff as aforesaid, and the defendant advised N. C. Elting, who was the cashier of the plaintiff, of his said agreement with said Nichols, and said Elting, for and on behalf of the plaintiff, assented thereto, and the said Elting agreed to assist said defendant in getting said contract, and, on the faith of the said undertakings and agreements of the defendant, plaintiff forebore to sue said Nichols on said claim due from him as aforesaid, and forebore to attach said materials for its said debt. And plaintiff avers that said Elting did assist defendant in getting the contract to build said buildings for said Cherry Cotton Mills, and that he did get said contract, and said Elting became his surety for the performance of the same, and that said Nichols did give up all his rights to his said arrangement and contract with the said Cherry Cotton Mills to and in favor of the said defendant, and did allow his foreman to aid the defendant in the performance of the said contract, and said contract was performed by defendant with the aid of the said foreman, and said Nichols did confess judgment in the circuit court of Lauderdale county, Ala., on the 16th March, 1893, and, under the said judgment and the execution thereon issued, the defendant sold the said material of the said Nichols purchased in part with the said money advanced him by the plaintiff, and became the owner of the said material, and a large part of the said material was used in the construction of the said buildings for said Cherry Cotton Mills by defendant." The complaint then avers that defendant, under his said agreement and undertakings, became liable to pay the sum of $4,000 to plaintiff, and that the same was due on the 1st November, 1893, when said contract of defendant with said Cherry Cotton Mills was completed, and defendant, though often requested, has failed to pay the same, etc. The defendant demurred to the third and fourth counts, upon the ground that the cause of action averred therein was a departure from the cause of action contained in the original complaint. This demurrer was overruled. Defendant also moved to strike from the file the third and fourth counts of the complaint, because they constitute a departure from the cause of action on which the original complaint was based. This motion was overruled, and the defendant duly excepted. The defendant filed the plea of the general issue, and several special pleas setting up the statute of limitations of three and six years, and a want of consideration for the promise or agreement alleged in the complaint, and that said agreement or contract as alleged in the complaint was an agreement to answer for the debt, default, and miscarriage of another, and was without consideration, and was not reduced to writing, and was void under the statute of frauds. The plaintiff moved the court to strike pleas numbered 1, 2, and 7 from the file, upon the ground that they presented no defense to the action. These pleas set up the statute of limitations of three years. This motion was sustained, the said pleas were stricken, and the defendant duly excepted. The facts of the case and the rulings of the court upon the evidence, which are reviewed on the present appeal, are sufficiently shown in the opinion.

The defendant separately excepted to the following separate and several portions of the court's general charge to the jury: "(1) I charge you, gentlemen of the jury, that if you believe from the evidence that such a contract was made and entered into by and between Nichols and the defendant as is alleged in said fourth count of plaintiff's complaint, and that the plaintiff consented to it, the defendant then and there became liable to the plaintiff for the debt sued for in this cause, although said contract or agreement was not in writing. (2) I charge you, gentlemen of the jury, that if you believe from the evidence that Nichols and the defendant, Moore, made and entered into the contract or agreement as is alleged in the said fourth count of the complaint, the defendant would be liable to the plaintiff for the debt sued for, whether the plaintiff agreed to or consented to such an arrangement at the time or not, provided plaintiff afterwards consented to it. (3) I charge you, gentlemen of the jury, that, if you believe from the evidence that Nichols and Moore made and entered into the contract or agreement as is alleged in said fourth count of plaintiff's complaint, the defendant would be liable to the plaintiff for the debt sued for, whether the plaintiff was present and participated in the agreement when it was made or not, provided plaintiff afterwards assented to the arrangement. (4) I charge you, gentlemen of the jury, if you believe from the evidence that Nichols and the defendant Moore made and entered into the contract or agreement as is alleged in said fourth count of the plaintiff's complaint, although not in writing, and that plaintiff assented to it, defendant would be liable to plaintiff for the debt sued for, even if you should believe from the evidence that the plaintiff still held its note against Nichols, and had it renewed after such agreement was made."

The defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: "(1) If the jury believe from the evidence that the judgment confessed in this court by H. C. Nichols in favor of the defendant, Moore, aggregating $16,604.03, was for said indebtedness which said Moore claimed to be due him from the said H. C. Nichols, and did not include anything which the said Moore recognized to be Nichols' indebtedness to the First National Bank, then any promise made by Moore to pay said indebtedness of Nichols to the bank, if any...

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