Moore v. Williamson

• Decision Date: 16 April 1925
• Docket Number: 8 Div. 672
• Citation: 213 Ala. 274,104 So. 645
• Parties: MOORE et al. v. WILLIAMSON.
• Court: Alabama Supreme Court

104 So. 645

213 Ala. 274

MOORE et al. v. WILLIAMSON.

8 Div. 672

Supreme Court of Alabama

April 16, 1925

Rehearing Denied May 28, 1925

Appeal from Circuit Court, Madison County; James E. Horton, Jr. Judge.

Action upon a written agreement by A.J. Williamson against Nora A Moore and J.Z. Moore. From a judgment for plaintiff defendants appeal. Reversed and remanded.

See also, 210 Ala. 427, 98 So. 201.

R.E. Smith and Spragins & Speake, all of Huntsville, for appellants.

Cooper & Cooper, of Huntsville, for appellee.

THOMAS J.

The first appeal is reported as Moore v. Williamson, 210 Ala. 427, 98 So. 201.

At the second trial plaintiff added a count for work and labor done in the sale of land, and it was sought by plea 4 to show a modification of the written contract declared upon. Demurrer was sustained to the plea. The fact of a subsequent revocation or modification of an executory contract is required to be presented by special plea, as was sought to be done by defendants. Newton v. Brooks, 134 Ala. 269, 32 So. 722; Sanders v. Williams, 163 Ala. 454, 50 So. 893; Code 1907, § 5331; 7 Mayfield's Dig. p. 718. See analogy in Huntsville Elks Club v. Garrity-Hahn Bldg. Co., 176 Ala. 128, 57 So. 750; George v. Roberts, 186 Ala. 521, 65 So. 345; Southern States Co. v. Long, 15 Ala.App. 286, 73 So. 148; L.R.A.1915B, p. 68. Was this ruling without prejudice to the defendants?

The bill of exceptions declares that, as to the witness Nora Moore, the trial court declined to permit her to answer that the trade with Daniel Bros. fell through, and whether "Daniel Brothers ever asked for or received possession of the property." It is shown that the witness Markham testified:

"I heard a conversation between Mr. Williamson and Mr. Moore at the gin at Ryland about selling Mr. Moore's land to Daniel Bros. Mr. Moore said: 'Suppose them niggers throw the land back on me--you have got me and wife tied for $900.' Mr. Williamson said: 'Jim, I would be the last man to think about doing that; if they don't keep the land you don't owe me a cent.' "

The testimony of W.I. Taylor was:

"I had a conversation with Mr. Williamson, the plaintiff, about the sale of the land to Daniel Bros.; that was at the gin at Ryland, during the ginning season in 1921, I believe. The trade had been made before that; I don't know what time. We were out in the gin yard, and Mr. Williamson said it was rumored around that these negroes were going to back out on J.Z., and he said that J.Z. might want to pay, and he said he would not do J.Z. that way. By J.Z. I mean Mr. Moore. He said if they did not take the place he did not want none."

His reference to "Mr. Williamson" meant the plaintiff, and "J.Z." was one of the defendants. The plaintiff's motion to exclude this evidence was granted over defendants' objection.

Was the defense sought to be made by the plea available in bar of a recovery?

The question as to a subsequent verbal waiver unsupported by any stated consideration was propounded without answer on former trial. It is now necessary that we consider the special instances as to what has been held to constitute a sufficient consideration for a secondary contract.

In New Farley Nat. Bk. v. Montgomery County, 203 Ala. 654, 84 So. 815, and Montgomery County v. New Farley Nat.Bk., 200 Ala. 170, 75 So. 918, the question decided was that the county might modify an executory contract when supported by a consideration--that the remission sought to be made of accrued interest on bonds was nothing less than a gift of the interest to accrue between the date of the resolution of the governing body of the county for remission and the delivery of the bonds. In Brown v. Lowndes County, 201 Ala. 437, 78 So. 815, and Hand Lumber Co. v. Hall, 147 Ala. 561, 41 So. 78, there was accord and satisfaction and surrender of the evidence of the debt; in Hoffman v. Moreman & Webb, 184 Ala. 220, 63 So. 942, the original contract was for exchange of meal for seed, and it was modified by acceptance of the meal and agreement to pay difference in value of the two articles. In Shriner v. Craft, 166 Ala. 146, 51 So. 884, 28 L.R.A. (N.S.) 450, 139 Am.St.Rep. 19, there was the promise to increase the price of building or construction to prevent a threatened abandonment of the work, unless such increase in price was agreed upon.

In Maness v. Henry, 96 Ala. 454, 460, 11 So. 410, 412, an action on promissory note, the principle is announced that a mere waiver by one party to a contract, unsupported by any consideration moving from the other, will not bar the former's rights--that "such a one-sided agreement, being supported by no consideration at all, cannot avail to discharge the obligation imposed upon the other by the contract"; and in Andrews v. Tucker, 127 Ala. 602, 29 So. 34, it was held that any executory contract imposing obligations beyond the mere payment of stated sums of money may, without further consideration than the mutual agreement of the parties, written or oral, be so changed as to waive any right either party might have had under the original agreement but for the new agreement. It is not necessary that we try to harmonize any apparent conflict there may be between Maness v. Henry, supra, and Andrews v. Tucker, supra. However, in the latter case there were mutual duties to be performed by the respective parties aside from the mere payment of money, as was the case in the former as to one of the parties; that is to say, in the former case there was a tripartite agreement between Maness, Shields and Henry, and under the original agreement Maness had only to pay his note to Henry; yet there were other mutual duties to be performed between Shields and Henry. In Westmoreland v. Porter, 75 Ala. 452, the contract had been executed by one party, leaving the obligation to pay on the other; and it was held not to be rescinded by mutual agreement without a consideration. Such are the cases cited in the quaere contained in Moore v. Williamson, 210 Ala. 427, 98 So. 201.

From the foregoing authorities the question now for consideration is involved in the difficulty in making application of the general rule obtaining in the premises. There are many authorities to the effect that any unperformed contract, bilateral in the advantages and obligations given and assumed, by mutual assent, before a breach of it has occurred, may be modified or altered within the law, without any new, independent, or distinct consideration for the change, other than that of mutual assent. This is illustrated by the decisions in George v. Roberts, 186 Ala. 521, 65 So. 345, an executory contract for building, where payments were to be made for architect's certificate ( Bixby-Theisen Co. v. Evans, 174 Ala. 571, 57 So. 39); executory contract to loan money to be used in reconstructing a water power, etc. (Shriner v. Craft, 166 Ala. 146, 51 So. 884, 28 L.R.A.[ N.S.] 450, 139 Am.St.Rep. 19); a building contract sought to be modified because of breach, unless there was an increase of the construction price. The case of Pioneer S. & L. Co. v. Nonnemacher, 127 Ala. 523, 536, 546, 30 So. 79, was presented by a bill to enjoin foreclosure and for cancellation of mortgage by a building and loan association. The mortgage was to procure funds for additional improvements on grantor's homestead, and the collateral contract required interest on the loan and payments on stock which was transferred as collateral to the mortgage. The "alteration of the original stock contract" set up was made on a subsequent date. It was held that the original stock contract was in a sense an executed contract, yet it was in the performance of conditions attached to it continuing in its nature, and its completion imposed upon defendant the performance of these conditions by the shareholder extending over a number of years, and that such contract was subject to modification by the mutual assent of the parties. In Cornish v. Suydam, 99 Ala. 621, 13 So. 118, Badders v. Davis, 88 Ala. 367, 6 So. 834, and Clark v. Jones, 85 Ala. 127, 4 So. 771, there were building contracts modified during the construction as to time of completion, and as to extra or new work to be done. In Stewart v. Cross, 66 Ala. 22, 28, a bill was filed by the purchaser of land for specific performance, and Mr. Justice Stone declared that the subsequent agreement, after part of the purchase price had been paid and possession delivered, increasing the price by more than the lawful interest, was usurious; that the vendor had the right to treat partial payments as rent, and therefore might waive that provision of the contract by receiving "partial payments on the purchase"; and in Robinson v. Bullock, 66 Ala. 548, 554, the decision was by Mr. Chief Justice Brickell, saying:

"While it may be true that a liability manifested by a contract in writing cannot be discharged by a mere parol executory agreement, it is equally true that a contract in writing, whether under seal or not, executory in all its terms, involving mutual duties, may, by a subsequent parol agreement be modified, altered, or rescinded; and no other consideration is necessary to support such agreement than the mutual assent of the parties."

In that case the modified contract, subsequently made, and which was considered, was for the furnishing of logs to a mill for a period of eighteen months. Deliveries to be made on behalf of the defendant were to be executed by the third parties named, and relieved the defendant of that duty and liability for a breach of such third parties.

There are many other decisions in this jurisdiction to support the text of the foregoing authorities. For example, Elliott v. Howison, 146 Ala. 568, 592, 40 So. 1018, is founded on a breach of contract for delivery of piling of the...