Speer v. Crowder
Decision Date | 28 June 1902 |
Citation | 32 So. 658 |
Parties | SPEER v. CROWDER. |
Court | Alabama Supreme Court |
Appeal from circuit court, Clarke county; Jno. C. Anderson, Judge.
Action by J. M. Crowder against Arthur R. Speer. From a judgment for plaintiff, defendant appeals. Reversed.
This action was brought by the appellee, J. M. Crowder, against the appellant, Arthur R. Speer, in which the plaintiff sought to recover of the defendant the sum of $212, alleged to be due under the following agreement: "On account of the indebtedness of the Bigbee River Lumber Company to him, I am due J. M. Crowder the sum of eight hundred and fifty dollars which I agree to pay to him or his order as follows, to wit On March 6, 1900, $212.50; on June 6, 1900, $212.50; on September 6, 1900, $212.50; and on December 6, 1900 $212.50." This agreement was dated March 2, 1900, and signed by A. R. Speer, and was duly attested. The defendant demurred to the complaint, upon the ground that the instrument sued on shows on its face that it was a promise to answer to the debt, default, or miscarriage of another, and does not express any consideration to support the promise. The ruling of the court upon this demurrer, as shown by the minute entry, was as follows: "The defendant's demurrers to the complaint were overruled by the court." The defendant pleaded the general issue, want of consideration, and the following special plea: "(3) For further answer to the complaint, the defendant says that the instrument sued upon is void, because it is a promise to answer for the debt of another, and does not express the consideration moving to defendant." The plaintiff moved to strike plea No. 3 from the file, upon the ground that it was frivolous. The court granted said motion to strike said plea from the file, and to this ruling the defendant duly excepted. The defendant then filed another plea numbered 3 reciting the failure of consideration, and issue was joined on the pleas interposed by the defendant. There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.
Lackland & Wilson, for appellant.
Wm. D. Dunn and McIntosh & Rich, for appellee.
Not only does the statute of frauds (Code, § 2152) require that every special promise to answer for the debt of another shall be in writing, but another provision by the statute made essential to the validity of such promise is that a consideration therefor shall be expressed in writing. Strouse v. Elting, 110 Ala. 132, 20 So. 123; Bolling v. Munchus, 65 Ala. 558; Rigby v. Norwood, 34 Ala. 129. From this requirement contracts within the influence of the statute of frauds are not relieved by section 1800 of the Code, which provides, in substance, among other things, that a written contract, the foundation of a suit, is prima facie evidence that it was made on sufficient consideration. Rigby v. Norwood, supra.
The record recital that "defendant's demurrers to the complaint were overruled" is not, in form or substance a judgment on the demurrers, and therefore does...
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...based on such rulings. Hereford v. Combs, 126 Ala. 369, 28 So. 582; Bessemer L. & I. Co. v. Dubose, 125 Ala. 442, 28 So. 380; Speer v. Crowder, 32 So. 658; Dantzler v. Mill Co., 128 Ala. 30 So. 674; Reese v. Fuller, 132 Ala. 282, 31 So. 601. It is also shown by the judgment entry with respe......
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Rains v. Patton
... ... facie presumed to be supported by a sufficient consideration ... Rigby v. Norwood, 34 Ala. 129; Speer v ... Crowder, 32 So. 658. That is a mere rule of evidence, ... and has nothing to do with the formal validity of the ... contract ... ...