Opinion
8 Div. 391.
October 6, 1936. Rehearing Denied November 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, 234 Ala. 8, 171 So. 759.
The complaint was in two counts, each of which claimed the same amount to be due plaintiff. Demurrers were sustained to both counts; after which, plaintiff, by leave of the court, amended count 2, and to this count demurrer was overruled.
The second count of the complaint as amended is as follows: "Plaintiff alleges that prior to February 15, 1930, she held real estate mortgage on certain real estate at Stewart Springs in Lauderdale County, Alabama in total sum of $3000.00; that Jas. C. Roberts and S. S. Roberts purchased said property subject to aforesaid mortgage; that at the request of S. S. Roberts and Jas. C. Roberts, plaintiff assigned $2500.00 of the real estate mortgage to Mrs. Jennie Ferguson and received from said Mrs. Jennie Ferguson the sum of $2500.00; that upon so doing, there remained a balance due her from Jas. C. Roberts and S. S. Roberts the sum of $500.00 and on to-wit, February 15, 1930, Jas. C. Roberts and S. S. Roberts executed to plaintiff their personal promissory note in the sum of $500.00 due and payable on January 1, 1931, said note provided for waiver of exemptions and reasonable attorney's fee for collection thereof. That subsequent to January 1, 1931, Jas. C. Roberts died and his wife, Mary A. Roberts, defendant herein was duly appointed administratrix of his estate; that Mary A. Roberts entered into an agreement with S. S. Roberts whereby S. S. Roberts executed to Mary A. Roberts a deed to all partnership property, both real and personal, owned by him and Jas. C. Roberts at the time of the death of said Jas. C. Roberts and in consideration for said deed of conveyance, the said Mary A. Roberts assumed and agreed to pay the partnership obligations, included among which was this note due plaintiff as stated aforesaid, which said note due plaintiff was due and unpaid; that in pursuance of said agreement and assumption of said obligation, the said defendant, Mary A. Roberts, on, to-wit, September 7, 1931, paid on aforesaid note the sum of $100.00, and at the time of said payment agreed to make further payment; (that defendant has retained all the properties deeded her by S. S. Roberts in consideration for her agreement to pay the partnership obligations), but has failed to pay the remainder of this particular note; that the amount due on said note as of September 7, 1931, is $400.00 with accrued interest of $23.50 to that date, and interest on $400.00 from September 7, 1931, to present time, together with $150.00 which plaintiff avers is a reasonable attorney's fee as provided in said note, all of which plaintiff avers is due and unpaid, hence this suit."
To this count defendant interposed pleas 1 and 2, which are the general issue, and 3 and 4, as follows: "3. For further answer the defendant says that there is no memorandum, note or other writing signed by this defendant or by anyone authorized in writing by this defendant to bind her, by which this defendant agreed to pay the note sued on and said note was the note of J. C. Roberts and S. S. Roberts and not the note of this defendant. 4. The debt sued on is not the debt of this defendant but the debt of J. C. Roberts and S. S. Roberts and that this defendant has not signed any note memorandum or other agreements, agreeing to pay said note, nor has she authorized in writing anyone to so bind her."
Issue was joined on these pleas without demurrer. On the trial pleas 3 and 4 were proven without dispute, and upon this evidence, the court gave, at the request of the defendant, the general affirmative charge which was requested in writing.
After judgment the plaintiff made a motion for a new trial and to set aside the judgment. The motion for a new trial was granted, and from this judgment, defendant brings this appeal.
Bradshaw Barnett and Fred S. Parnell, all of Florence, for appellant.
Plaintiff joined issue on pleas 3 and 4 and went to trial on the issues so made. The pleas were, therefore material whether or not sufficient as matter of law. Breitling v. Marx, 123 Ala. 222, 26 So. 203; Ala. F. I. Co. v. Denson, 208 Ala. 337, 94 So. 311; Fraternal Aid Union v. Monfee, 230 Ala. 202, 160 So. 529. The pleas having been sustained by the proof, defendant was entitled to a verdict.
Raymond Murphy, of Florence, for appellee.
Appellee met the burden assumed by her in joining issue on appellant's pleas, by proving a contract that was not required to be in writing. Lord v. Calhoun, 162 Ala. 444, 50 So. 402; Forbes Carloss v. Plummer, 198 Ala. 162, 73 So. 451; Moore v. First Nat. Bank, 139 Ala. 595, 36 So. 777. A promise to pay a debt, made to the debtor, is not within the statute of frauds. Clark v. Jones, 85 Ala. 127, 4 So. 771; Newell Cont. Co. v. Glenn, 214 Ala. 282, 107 So. 801, 803; Nor. Ala. Lbr. v. Board of Ed., 210 Ala. 254, 97 So. 734; Mitchell v. Hickman, 208 Ala. 344, 94 So. 284. The assumption of a debt in consideration of the transfer of property is not invalid because not in writing. Malone-Beal M. Co. v. Greer, 169 Ala. 543, 53 So. 810. Appellant's promise was to pay her own obligation. Woodruff v. Scaife, 83 Ala. 152, 3 So. 311; Aultman Co. v. Fletcher, 110 Ala. 452, 18 So. 215.
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 memorandum, note, or other writing signed by the defendant or any one authorized in writing by her to bind her by which this defendant agreed to pay the note sued on, and said note was the note of J. C. Roberts and S. S. Roberts and not the note of defendant. The trial court therefore was not in error in giving the general charge for the defendant upon plea 3, but he was in error in setting aside the judgment and granting a motion for a new trial. Fraternal Aid Union v. Monfee, 230 Ala. 202, 160 So. 529; White v. Yawkey, 108 Ala. 270, 19 So. 360, 32 L.R.A. 199, 54 Am.St.Rep. 159.
In enforcing this rule we are aware of the fact, as said by Somerville, justice, in Drake v. Nunn, 210 Ala. 136, 97 So. 211, that it is highly technical and sometimes promotive of injustice, but has been firmly established by the decisions of the Supreme Court of Alabama. The foregoing is not an exact quotation, but in substance is the rule laid down by Somerville, justice, in the above-cited case and is sustained by Central of Georgia Railway Co. v. Gross, 192 Ala. 354, 68 So. 291.
Other grounds in the motion for a new trial have been examined and found to be without merit, but for the error pointed out, the judgment of the lower court is reversed, and the cause is remanded.
Reversed and remanded.