Thompson Foundry & Machine Works v. Glass

• Decision Date: 28 February 1903
• Citation: 33 So. 811,136 Ala. 648
• Parties: THOMPSON FOUNDRY & MACHINE WORKS v. GLASS.
• Court: Alabama Supreme Court

33 So. 811

136 Ala. 648

THOMPSON FOUNDRY & MACHINE WORKS v. GLASS.

Supreme Court of Alabama

February 28, 1903

Appeal from circuit court, Mobile county; Wm. S. Anderson, Judge.

Action on rent notes by Adam Glass against Thompson Foundry &amp Machine Company. From a judgment for plaintiff, defendant appeals. Reversed.

This action was brought by the appellee, Adam Glass, against the appellants; and counted upon several promissory notes, which were given to the plaintiff for the rent of a certain building owned by the plaintiff. In the complaint the defendants are described as follows: "Julius Thompson and Willie May Thompson, doing business as 'Thompson Foundry & Machine Works.' " The complaint as originally filed contained several counts, and in each count the plaintiff claimed of the defendants a sum due "by promissory note made by him" on a certain date, and payable on a subsequent date; each count seeking to recover upon a separate promissory note. Against the objection and exception of the defendants, the plaintiff was allowed to amend each count of the complaint by striking out the word "him" in each count, and inserting in lieu thereof the word "them." The substance of the several special pleas of the defendants is sufficiently stated in the opinion. The plaintiff filed several replications to these special pleas, the substance of which replications is also set out in the opinion. The defendants demurred to the several replications, upon the grounds shown in the opinion and these demurrers were overruled. The other facts of the case pertaining to the rulings of the trial court which are reviewed on the present appeal are sufficiently shown in the opinion. There were verdict and judgment for the plaintiff. The defendants appeal, and assign as error the several rulings of the trial court upon the pleadings and upon the evidence to which exceptions were reserved.

Mitchell & Tonsmeire and Gregory L. & H. T. Smith, for appellants.

Pillans Hanaw & Pillans, for appellee.

TYSON J.

This action was brought to enforce the collection of a number of promissory notes alleged to have been executed by the defendants for installments of rent for the property described in the complaint. The defendants interposed special pleas of set-off, alleging that prior to the execution of the notes, and as an inducement to the rental of said property and the execution of said notes, the plaintiff promised and agreed with defendants that he would repair the roof of the foundry building located on said property, which was then in a very leaky condition, so that it would not leak; that, relying on said promise and agreement, defendants rented said premises and executed said notes and went into possession of said property and occupied it for the purposes for which it was rented, and that the plaintiff breached his promise to make the repairs, etc. To these pleas three special replications were filed, numbered 2, 3, and 4. The substance of the allegations of these replications may be stated to be that the notes sued upon were rent notes executed contemporaneously with a lease in writing, which contract of lease was mutually executed by the parties to this suit, and that it contained no stipulation or promise on the part of the plaintiff to make the repairs. To each of these replications a demurrer was interposed on the ground that the pleas showed that the set-off claimed did not arise from any alleged breach of the condition of the lease, but from the breach of an entirely separate and distinct agreement entered into prior to the execution of the lease and notes.

On the trial the plaintiff introduced in evidence the lease, which purports to be executed by all the parties, and bears date corresponding to the date of the notes. This lease contains no promise or obligation on the part of the plaintiff to make the repairs. The defendants offered to show that an oral promise was made by plaintiff as alleged in the pleas, and a nonfulfillment of that promise. On objection, they were not allowed to do so, to which an exception was reserved. Thus, we see, the question raised, both by the demurrer and the exception reserved to the ruling of the court upon the exclusion of the evidence in support of the pleas, is whether the promise alleged in them was a separate and distinct one, and, therefore, in no wise contradicts, varies, or materially affects the lease, either in terms or legal effect.

It is not contended by appellants that if the promise was merged in the written lease parol evidence is admissible to prove it. But the contention is that it is altogether independent of and collateral to the lease. This direct question has not been decided by this court, but it has frequently been passed upon by other courts. It is true there is a divergence of opinion upon it. Of those holding the views contended for by appellants may be cited: Erskine v. Adeane, 8 Ch App. 756; Mann v. Nunn, 43 Law J. C. P. 241; Clenighan v. McFarland (Com. Pl.) 11 N.Y.S. 719; Chapin v. Dobson, 78 N.Y. 81, 34 Am. Rep. 512. A contrary view is held in the following cases: Brigham v. Rogers, 17 Mass. 571; Eberle v. Girard Life Ins. Co. (Pa.) 4 Atl. 808; Wodock v. Robinson, 148 Pa. 503, 24 A. 73; Cleves v. Willoughby, 7 Hill, 83; Wilson v. Deen, 74 N.Y. 531; McLean v. Nicol, 43 Minn. 169, 45 N.W. 15; Tracy v. The Union Iron Works, 104 Mo. 193, 16 S.W. 203; Diven v. Johnson, 117 Ind. 512, 20 N.E. 428, 3 L. R. A. 308; Stoddard v. Nelson, 17 Or. 417, 21 P. 456; Howard v. Thomas, 12 Ohio St. 201; Naumberg v. Young, 44 N. J. Law, 331, 43 Am. Rep. 380. In the two cases last cited will be found able and lengthy discussions of the question. The New Jersey court reviews the English cases cited above sustaining appellants' contention, and shows the utter fallacy of the doctrine announced in them. After careful consideration of the cases on both sides of the question, we are clearly of the opinion that the weight of authority, as well as reason, supports the view that the promise relied upon by the defendants was not independent and collateral to the lease, but was a part of the bargain to rent the property, and to allow proof of it would violate the salutary rule excluding parol evidence to alter or add to a written agreement. As indirectly supporting...