Perry & Walden v. Gallagher

• Decision Date: 20 May 1919
• Docket Number: 6 Div. 562
• Citation: 82 So. 562,17 Ala.App. 114
• Parties: PERRY & WALDEN v. GALLAGHER.
• Court: Alabama Court of Appeals

82 So. 562

17 Ala.App. 114

PERRY & WALDEN v. GALLAGHER.

6 Div. 562

Court of Appeals of Alabama

May 20, 1919

Appeal from Circuit Court, Walker County; T.L. Sowell, Judge.

Assumpsit by J.L. Gallagher against Perry & Walden. Judgment for plaintiff, and defendants appeal. Affirmed.

Count 4 of the complaint is as follows:

Plaintiff claims of the defendants the further sum of $32.50 for that on, to wit, December 1, 1914, the defendants promised to furnish plaintiff with lumber to the value of $32.50, and that one Coleman Gann was indebted to plaintiff in the sum of $32.50, and said defendants stated to plaintiff that they were indebted to Gann and that they would deliver to plaintiff said lumber; and plaintiff, in pursuance of said agreement, discharged said Gann from his said indebtedness with the consent of said Gann, but the defendants failed then or refused to comply with said agreement and to deliver said lumber to plaintiff; and this relates to the same transaction as counts 1, 2, and 3, and plaintiff claims interest on said claim.

J.M Pennington, of Jasper, and W.T. McElroy, of Carbon Hill, for appellants.

Ray &amp Cooner, of Jasper, for appellee.

SAMFORD J.

The fourth count of the complaint, upon which the cause was tried, sets up a novation, and the insistence of appellant is that the complaint is subject to demurrer for the reason that it fails to allege that the defendants were indebted to the original debtor of plaintiff, and whom it is alleged the plaintiff discharged from further liability to him upon the express agreement of defendants to pay plaintiff the amount due, representing to plaintiff at the same time that they (the defendants) were indebted to plaintiff's original debtor in the amount which they were agreeing to pay. The complaint alleged a previous valid indebtedness due from the original debtor to plaintiff, an agreement of all the parties to the new contract or obligation, an agreement that it was an extinguishment of the old contract or obligation, and a new contract or obligation binding between the parties thereto. It was not necessary to allege a consideration passing to the defendants other than the release by plaintiff, at the instance of defendants, of the claim which he held against the original debtor. This was not a promise of the defendants to answer for the debt, default, or miscarriage of another, but was an original undertaking by them, where, on account of their promise, the plaintiff released the claim which he had theretofore held. The complaint was not subject to demurrer interposed. Perry &amp Walden v. Gallagher (Sup.) 75 So. 396; Hopkins v Jordan (Sup.) 77 So. 710; McDonnell v. Ala. Gold Life, 85 Ala. 414, 5 So. 120; 20 R.C.L., pp....