Roberson v. Cantrell

• Decision Date: 21 March 1935
• Docket Number: 6 Div. 706
• Citation: 160 So. 224,230 Ala. 152
• Parties: ROBERSON et al. v. CANTRELL et al.
• Court: Alabama Supreme Court

160 So. 224

230 Ala. 152

ROBERSON et al. v. CANTRELL et al.

6 Div. 706

Supreme Court of Alabama

March 21, 1935

Appeal from Circuit Court, Marion County; Ernest Lacy, Judge.

Action on promissory note by T.C. Roberson and M.M. Carpenter, as administrators of the estate of T.W. Carpenter, deceased against W.H. Cantrell, A.R. Britton, and others. From a judgment for the named defendants, plaintiffs appeal.

Transferred from Court of Appeals under section 7326, Code 1923.

Affirmed.

Travis Williams, of Russellville, and C.E. Mitchell, of Hamilton for appellants.

Ernest Fite, of Hamilton, and Arthur F. Fite, of Jasper, for appellees.

FOSTER Justice.

This is an action on a promissory note against the principal, not defending, and the sureties, who interposed certain special matter in defense.

There was a judgment for them based upon that defense. On this appeal, the only question argued relates to the competency of that defense. It arises on rulings on demurrer to the special pleas of the sureties on the note.

In appellants' brief, it is stated that all those pleas set up substantially the same facts, summarized in the brief as follows: "That at the time or immediately before the note was executed and delivered to Carpenter it (there) was a verbal agreement between Carpenter and Cantrell and Britton that Carpenter would collect $50.00 per month from Hall (the principal in the note) out of his wages as mail carrier until the note was paid, or until Hall lost or quit his job, and that Cantrell and Britton would not be called on to pay the note," unless Hall died or lost his job.

The only proposition of law asserted by counsel in respect to the sufficiency of that as a special defense is that it "contradicts a written agreement by previous or contemporaneous verbal agreement." It is noted that no question is thus presented as to the legal effect of such contemporaneous agreement, if it is binding, or the sufficiency of the pleas in their statement of the terms of the agreement, or its breach, nor the effect of its breach nor that plaintiff had an opportunity to carry it out as made, nor any other matter in connection with the sufficiency of those pleas.

The only question we will consider is the one argued, viz., Is the agreement thus set up one which contradicts the obligations of the note sued on? The pleas set out an agreement which imposes a collateral obligation on plaintiff. By such...