Appeal
from circuit court, Lauderdale county; James J. Banks, Judge.
Action
by D. B. Strouse and T. J. Shickel against N. C. Elting to
recover $2,000 on a written agreement by which defendant
covenanted to pay such sum for purposes and on conditions
stated in the agreement, tried to the court without a jury.
From a judgment in favor of defendant, plaintiff's
appeal. Reversed.
The
complaint contained five counts. The first, second, fourth
and fifth were as follows: "(1) The plaintiffs claim of
the defendant the sum of two thousand dollars for the breach
of the terms and condition of an agreement made and entered
into by the defendant on the 15th day of November, 1890
delivered and payable to James A. Bonsack, in the sum of two
thousand dollars, with condition that if the South Birmingham
Coal and Iron Company should not pay to said James A. Bonsack
the note of said company, made to said Bonsack, for the sum
of eight thousand three hundred and forty-one and 36/100
dollars when due, he (the said defendant) would, on demand
pay on and towards the liquidation and payment of said note
the sum of two thousand dollars. And plaintiffs aver that
said defendant was a stockholder of and in the said South
Birmingham Coal and Iron Company at the time said agreement
was made by him; and that said note to said Bonsack for the
amount aforesaid was made for the indebtedness of said
company to said Bonsack, for money borrowed from him by said
company, and for the benefit of the stockholders thereof and
that the condition of said agreement has been broken by the
defendant, in this: that the said note of said South
Birmingham Coal and Iron Company to said Bonsack for the
amount aforesaid was not paid by said company when due, and
that said defendant has failed and refused on demand, and
doth still fail and refuse on demand, to contribute to the
payment of said note, or to pay on account of said
indebtedness, evidenced by said note, the said sum of two
thousand dollars, or any other sum whatsoever, to the damage
of the plaintiffs in the said sum of two thousand dollars, as
above stated, for which they bring this suit. And the
plaintiffs aver that the said note of said South Birmingham
Coal and Iron Company to said James A. Bonsack, and the said
agreement of the defendant, were duly transferred, assigned
and indorsed to them by the said James A. Bonsack; that the
same are due and unpaid, and are the property of the
plaintiffs. (2) The plaintiffs claim of the defendant the
further sum of two thousand dollars, damages for the breach
of a covenant and agreement entered into by the defendant on
the 15th day of November, 1890, which is in words and
figures, and by which he promised and agreed as follows, to
wit: 'Whereas, the South Birmingham Coal and Iron Company
has, for the purposes of the said company, borrowed the sum
of $12,000,-$3,500 from the Farmers' National Bank of
Salem; $158.64 from J. W. F. Allemong, of Salem, Va.; and
$8,341.36 from James A. Bonsack, of the city of Philadelphia
It is agreed by the undersigned, who is a stockholder in the
said company, that, in case the said note to the said James
A. Bonsack shall not be paid by the said South Birmingham
Coal and Iron Company, then the undersigned will, on demand
contribute to the payment thereof, as surety therefor, the
sum of two thousand dollars. November 15th. N. C.
Elting.' And the plaintiffs aver that the said South
Birmingham Coal and Iron Company did not pay the said note,
when due, to the said James A. Bonsack; and that the said
note and the aforesaid covenant and agreement have been duly
transferred, assigned, and indorsed to the plaintiffs, and
are now the property of the plaintiffs, and are due and
unpaid; and that the plaintiffs have demanded of the
defendant the payment by him of the said sum of two thousand
dollars in said agreement mentioned, and therein promised to
be paid by him, but the said defendant hath failed and
refused, and doth still fail and refuse, to pay the same, or
any part thereof, to the damage of the plaintiffs in the sum
of two thousand dollars, as above stated, for which they
bring this suit." "(4) The plaintiffs claim of the
defendant the further sum of two thousand dollars, for the
breach of a covenant or agreement entered into by the
defendant on the 15th day of November, 1890, by which he
covenanted and agreed to pay the sum of two thousand dollars
in discharge to that extent of a note for the sum of
$8,341.36, payable on demand to one James A. Bonsack, by the
South Birmingham Coal and Iron Company, of which the
defendant was then a stockholder, in the event the said note
was not paid by the said company when the same became due.
And the plaintiffs aver that the said note was not paid by
said company to said Bonsack on demand, but said company
failed and refused to pay the same, of which the defendant
had notice, and demand was thereupon made upon defendant to
pay the said sum of two thousand dollars, as by his said
covenant and agreement he had undertaken and promised to do,
as surety for said company, but the defendant failed and
refused to pay the same, or any part thereof; that the said
note of said company and the said agreement and covenant of
the defendant were duly transferred, assigned, and indorsed
by said James A. Bonsack to the plaintiffs, and the same are
now their property, and are due and unpaid; and that the
defendant, though often requested, hath failed and refused,
and doth still fail and refuse, to pay the same, or any part
thereof, as by his said agreement he undertook and promised
to do. (5) The plaintiffs claim of the defendant the further
sum of two thousand dollars, due by a written covenant or
agreement, made and entered into on the 15th day of November,
1890, by which the defendant covenanted and agreed, upon a
legal and sufficient consideration therein expressed, to pay
to James A. Bonsack the sum of two thousand dollars, in the
event the South Birmingham Coal and Iron Company, a private
corporation, in which the defendant was a stockholder, failed
to pay to the said James A. Bonsack the note made by said
company to said Bonsack for the sum of $8,341.36, payable on
demand. And plaintiffs aver that the said company failed and
refused to pay the said note to the said Bonsack on demand,
of which the defendant had due notice; and that the said
defendant failed and refused on demand to pay on account of
said note the said sum of two thousand dollars, as he had
agreed and covenanted to do, or any other sum whatsoever. And
plaintiffs aver that the said note and the written covenant
and agreement made by the said defendant, as aforesaid, were
duly transferred, assigned, and indorsed by the said Bonsack
to the plaintiffs, and are their property; and that they have
demanded payment of said sum of two thousand dollars of the
said defendant, but that the defendant hath failed and
refused, and doth still fail and refuse, to pay the said sum
by his said covenant and agreement stipulated to be paid by
him, or any other sum, for the recovery of which the
plaintiffs bring this suit." The facts averred in, and
the substance of, the third count of the complaint, are
sufficiently shown in the opinion. The defendant pleaded the
following pleas: "(1) The allegations of the complaint
are not true. (2) And, for further plea, defendant says that
there was no consideration for the promise alleged in said
complaint to have been made by defendant. (3) And, for
further plea, defendant says that the instrument sued on was
a promise to pay the debt of another, to wit, of the
'South Birmingham Coal and Iron Company'; and said
instrument does not express the consideration, and is void
under the statute of frauds." The plaintiffs moved to
strike the first plea from the file, on the ground that it
was, in effect, a plea of non est factum, and...
