Pugh v. Barnes

• Decision Date: 16 January 1896
• Parties: PUGH ET AL. v. BARNES.
• Court: Alabama Supreme Court

19 So. 370

108 Ala. 167

PUGH ET AL. v. BARNES.

Supreme Court of Alabama

January 16, 1896

Appeal from circuit court, Tallapoosa county; W. D. Denson, Judge.

Action by Pugh, Stone & Co. against J. L. Barnes on a contract to pay another's debt. From a judgment for defendant plaintiffs appeal. Affirmed.

Upon the introduction of all the evidence, the plaintiffs requested the court to give to the jury the following written charge, and duly excepted to the court's refusal to give the same: "If the jury believe from the evidence that in consideration of the defendant's promise under the contract to pay plaintiffs $100 the latter released Lucy Thomas and G. W. Matthews of $100 on their debt to plaintiffs by and with the consent of the defendant, then I charge you it makes no difference whether the boys performed the services under the contract or not, so far as the plaintiffs' right to recover against Barnes may be affected by failure to perform such services."

H. J Gillam and T. L. Bulger, for appellants.

H. A Garrett and James W. Strother, for appellee.

COLEMAN J.

Lucy Thomas and G. W. Matthews were indebted to Pugh, Stone & Co. in the sum of $200. The creditors, Pugh, Stone & Co., brought about a contract, evidenced by writing, between Lucy Thomas and the appellee, John L. Barnes, in which it was stipulated that Barnes was to pay $200 for the hire of her two minor sons for one year, $100 of which was to be paid to Pugh Stone & Co. The contract of hire stipulated that the hirer should have the right to deduct from the amount agreed to be paid as hire for all loss of time; and it was further provided that, if the boys did not perform faithful work, the hirer should have the privilege of hiring them to some other person. Pugh, Stone & Co. did not sign the agreement, and on its face it appeared to be a contract between Lucy Thomas and John L. Barnes only. The boys worked for Barnes about 4 1/2 months. Barnes refused to pay Pugh, Stone & Co. the $100, and they brought this suit. At the time of the trial, Mrs. Thomas was dead.

The two questions which arise in the case are: First, whether, in defense of the action, Barnes could show, as against the plaintiffs, Pugh, Stone & Co., a failure on the part of the boys to comply with the contract; and, second, Mrs. Thomas being dead, whether Barnes was a competent witness to testify to any statements made by her relative to the nonperformance of the contract, and her refusal to permit him to hire the boys to a third person, as provided therein. It is very clear that, if Lucy Thomas was suing to enforce the contract, any failure on her part to perform her undertaking could be set up wholly or pro tanto in defense of the action according to the circumstances of the case. The theory of the plaintiffs' contention is that it was mutually understood and agreed, as a part of the consideration of the agreement to which Barnes was a party, and so understood by him, that they were then to credit the debt of Lucy Thomas and G. W. Matthews with the $100 which Barnes agreed to pay them, and to look to Barnes for the amount, and to which they assented and accepted. Barnes controverts the truth of this statement. He insists there was no agreement made with the plaintiffs whatever; that he had no such understanding; and that, so far as he is concerned, there was no undertaking on his part...