Opinion
6 Div. 702.
June 29, 1922. Rehearing Denied October 12, 1922.
Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.
A. Latady and Arthur L. Brown, both of Birmingham, for appellant.
An injunction may be retained, notwithstanding the denials of the answer, when the mortgagee is about to foreclose a mortgage to the prejudice of the mortgagor, and when it is alleged that the existence of the mortgage has been fraudulently concealed from complainant. 87 Ala. 185, 6 So. 3. Equity will enjoin foreclosure, when it is attempted for the purpose of appeasing the debtor, and when such foreclosure appears to be unconscionable. 90 Ala. 302, 8 So. 157; 97 Ala. 503, 11 So. 836, 99 Ala. 548, 13 So. 18. When the dissolution of an injunction would cause greater injury than its continuance, it will not be dissolved, though the equity of the bill is fully met. 87 Ala. 185, 6 So. 3; 100 Ala. 148. 14 So. 552; 102 Ala. 454, 14 So. 776; 7 Conn. 50; 90 Ala. 302, 8 So. 157; 97 Ala. 503, 11 So. 836; 99 Ala. 548, 13 So. 18; 201 Ala. 150, 77 So. 574; 101 Ala. 681, 14 So. 639.
Beddow Oberdorfer, of Birmingham, for appellees.
If there is on file demurrer for want of equity on exceptions to the answer, they must be considered with the motion to dissolve; but, if there is no such demurrer, the bill must be dismissed, if it lacks equity. Sims, Ch.; 3 Stew. P. 285; 37 Ala. 687. A contemporaneous verbal agreement repugnant to the terms of a note is inadmissible. 59 Ala. 481; 82 Ala. 253, 2 So. 644: 119 Ala. 424, 24 So. 421; 131 Ala. 215, 31 So. 430; 54 Ala. 175; 70 Ala. 484, 45 Am. Rep. 88; 98 Ala. 258, 13 So. 48; 93 Ala. 405, 9 So. 367; 89 Ala. 505, 7 So. 444; 201 Ala. 411, 78 So. 789. The rule that parol evidence is inadmissible to vary the terms of a written instrument applies as well in equity as at law. 153 Ala. 558, 45 So. 71: 61 Ala. 80; 19 Ala. 680, 54 Am. Dec. 209; 22 C. J. 1074; 6 Ala. 532, 41 Am. Dec. 66; 203 Ala. 14, 81 So. 682.
On well-established principles of law, the bill of complaint is clearly without equity.
Conceding that J. A. Carr is, as alleged, the real owner of the note, and that he therefore had the authority to make, and did in fact make, the alleged agreement with complainant at the time he indorsed the note — viz. that the time for the payment of the note would be extended from time to time until August 1, 1922, beyond the date of its expressed maturity — that agreement cannot be asserted either in law or in equity, because it is in violation of the elementary rule that parol contemporaneous agreements are not admissible for the purpose of adding to, altering, contradicting, varying, or explaining the terms of a contract in writing, upon its face complete. 6 Michie's Digest, p. 351.
This rule is as applicable to bills of exchange and promissory notes as to any other contracts, as numerous adjudicated cases show.
In the early case of Sommerville v. Stephenson, 3 Stew. 271, the subject was quite fully discussed, and it was held that, in an action by an assignee against an assignor, the plaintiff could not excuse his lack of diligence as against the maker by showing a parol agreement between himself and the assignor that the latter would not be responsible for payment of the note until he had waited for two years on the maker, the note being in terms payable immediately. Still more specifically, in Doss v. Peterson, 82 Ala. 253, 2 So. 644, it was held that, in an action on a promissory note payable unconditionally, and on a day certain, parol evidence of a contemporaneous or antecedent agreement, postponing the time of payment, cannot be received.
In Corpus Juris the consensus of the authorities is thus stated:
"It cannot be shown that the time for the payment of the obligation, as agreed upon by the parties is different from the date of the maturity as appearing in the instrument, or that there was an agreement at the time of the making of the note that it would be renewed at maturity." 22 Corp. Jur. 1095.
Other illustrations will be found in Gliddens v. Harrison, 59 Ala. 481; Montgomery R. Co. v. Hurst, 9 Ala. 513; and Beard v. White, 1 Ala. 436.
The rule of course as aptly applies to a parol agreement between indorser and indorsee as to one between maker and payee; and the effect of the agreement here sought to be enforced being to change the maturity of the debt, and to thereby contradict and alter one of the material and vital terms of the obligation, the agreement is clearly inadmissible.
If the Southern Motor Company collects the debt, as payee of the note and holder of the collateral, that will of course effect a complete discharge of the maker and the indorser, even though Carr be in fact the beneficial owner of the debt; and the relations between said company and Carr can be of no concern to complainant as indorser of the note.
Still conceding the beneficial ownership of Carr, as charged in the bill, we know of no principle of law which would operate, in favor of the maker or indorser, to forbid the foreclosure of the note by the payee, the Southern Motor Company, in its own name, according to the tenor of the note; nor, indeed, is such a contention insisted upon in the brief for appellant.
Appellant conceives that, as the submission was on a motion to dissolve on the sworn answer and affidavits, dissolution could not properly be predicated on the want of equity in the bill. But the rule was settled otherwise in Williams v. Berry, 3 Stew. P. 284 (1833), where it was held that —
"Notwithstanding, the motion may have been to dissolve, on bill and answer, alone, if the court be satisfied, that the case, as presented by the bill, does not contain sufficient equity, to warrant relief in chancery, then, there can be no error, in dissolving the injunction, and dismissing the bill, for that cause."
See, also, Norris v. Norris, 27 Ala. 519; Cave v. Webb, 22 Ala. 583; Nelson v. Dunn, 15 Ala. 501; Bishop v. Wood, 59 Ala. 253.
The decree of the circuit court dissolving the temporary injunction is free from error, and will be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.