Roberts v. Murphy

• Decision Date: 06 October 1936
• Docket Number: 8 Div. 391
• Parties: ROBERTS v. MURPHY.
• Court: Alabama Court of Appeals

171 So. 757

27 Ala.App. 281

ROBERTS v. MURPHY.

8 Div. 391

Court of Appeals of Alabama

October 6, 1936

Rehearing Denied Nov. 17, 1936

Appeal from Law and Equity Court, Lauderdale County; Robert M. Hill Judge.

Action by Dora A. Murphy against Mary A. Roberts. From a judgment granting plaintiff's motion for a new trial, defendant appeals.

Reversed and remanded.

Certiorari denied by Supreme Court in Roberts v. Murphy, 171 So. 759.

Bradshaw & Barnett and Fred S. Parnell, all of Florence, for appellant.

Raymond Murphy, of Florence, for appellee.

SAMFORD Judge.

There was no reversible error in the ruling of the court sustaining defendant's demurrer to count 1 of the complaint for the very good reason that plaintiff had the full benefit of any claim which she might have had in the suit in the second count, and, if there was error in overruling the demurrer, it certainly was without prejudice.

Count 2 as amended, while informal in its claims, sufficiently sets forth the claim of the plaintiff, and to this count demurrers were overruled. The alleged promise of the defendant supported by the transfer and acceptance of property made by her to discharge a pecuniary obligation of the promisee to a third person, such third person assenting thereto, while the promise remains in force, is entitled to bring suit in her own name, though not otherwise a party to the contract. Moore v. First National Bank of Florence, 139 Ala 595, 36 So. 777, 780; Coleman v. Hatcher, 77 Ala. 217; Potts v. First National Bank, 102 Ala. 286, 14 So. 663; Sloss-Sheffield Steel & Iron Co. v. Taylor, 16 Ala.App. 241, 77 So. 79.

"In a case so founded, it is immaterial whether the plaintiff has relinquished his debt as against the promisee. The transaction amounts simply to an undertaking on the part of the promisor to perform his own obligation created by his contract with the promisee, and not to a promise to pay the debt of another within the meaning of the statute of frauds." Moore v. First National Bank of Florence, supra; Coleman v. Hatcher, supra; Mason v. Hall, 30 Ala. 599.

The case, however, went to the jury on pleas 3 and 4, to which no demurrer had been interposed and which thereby, under our decisions, became a complete answer to the complaint if the same were proven. It is the rule in this jurisdiction that parties may try the case upon such issue as they may desire and appellate courts will enforce the rights of litigants upon cases so tried. Pleas 3 and 4 were not answers to the complaint. The cause of action set up in the complaint did not come within the purview of the statute (Code 1923, § 8034(3) at all. The obligation was not to answer for the debt or default of another, but was a direct obligation of the defendant to pay certain indebtedness for and on account of a valuable consideration. However, we have nothing to do with that. Parties litigating this case assume the issue under pleas 3 and 4 and the evidence on this point was undisputed that there was no...