Opinion
4 Div. 101.
April 18, 1940. Rehearing Denied May 23, 1940.
Certiorari to Circuit Court, Pike County; W. L. Parks, Judge.
London Yancey, Fred G. Koenig, Sr., and Harry B. Cohen, all of Birmingham, for appellant.
The former judgment, rendered in an adversary proceeding, is conclusive and binding between the parties and, being res judicata, operates as an effective bar to the present suit. Code 1923, §§ 7571, 7578; Ford v. Crystal Ldy. Co., 238 Ala. 187, 189 So. 730; Davis v. Birmingham-T. Iron Co., 223 Ala. 259, 135 So. 455; Ex parte Johnston, 231 Ala. 458, 165 So. 108; Carlisle v. Try-me Bottling Co., 27 Ala. App. 142, 168 So. 598, Id., 232 Ala. 562, 168 So. 601; Fife v. Pine Hill Lbr. Co., 237 Ala. 92, 185 So. 759; Florence Gin Co. v. Florence, 226 Ala. 478, 147 So. 417. Estoppel cannot be predicated upon an invalid or illegal contract, or upon a promise that is unenforceable as a contract. Jelks v. McRae, 25 Ala. 440; Sims v. United Auto Supp. Co., 221 Ala. 383, 129 So. 53; Burroughs v. Pacific Guano Co., 81 Ala. 255, 1 So. 212; American Equitable Assur. Co. v. Powderly C. L. Co., 225 Ala. 208, 142 So. 37. Estoppel cannot be predicated upon a contract that is void under the Statute of Frauds. Clanton v. Scruggs, 95 Ala. 279, 10 So. 757; Code 1923, § 8034. The agreement alleged infringes Supreme Court Rule 22 and Circuit Court Rule 14, and is void and unenforceable because it is not in writing. Spencer v. Bley Bros., 232 Ala. 74, 166 So. 776; Rivers v. State, 13 Ala. App. 362, 363, 69 So. 387; Norman v. Burns, 67 Ala. 248; Choctaw Bank v. Dearmon, 223 Ala. 144, 134 So. 648; Brunnier v. Hill, 204 Ala. 403, 85 So. 691; Hendley v. Chabert, 189 Ala. 258, 65 So. 993; Kirkland v. Franke Co., 207 Ala. 377, 92 So. 472; Wright v. Evans, 53 Ala. 103.
John C. Walters, of Troy, for appellee.
Estoppel may be pleaded to a former judgment under certain circumstances, and in this particular case the circumstances are such that an estoppel will prevent the former judgment from interfering with this suit. Taylor v. Crook, 136 Ala. 354, 34 So. 905, 96 Am.St.Rep. 26; Adams v. Cent. of Ga. R. Co., 189 Ala. 665, 66 So. 628; Lasseter v. Deas, 9 Ala. App. 564, 63 So. 735; Western Union Tel. Co. v. Emerson, 14 Ala. App. 247, 69 So. 335; Planters' Lbr. Co. v. Sugar Cane By-Products Co., 162 La. 123, 110 So. 172; 11 Southern Digest, Estoppel, 68; Fourth Decennial Digest, Judgment, 746; Fourth Decennial Digest, Estoppel, 68. Defendant's agent made representations to plaintiff and got him into the predicament beyond the 30 day period for a new trial where he was helpless. Where one of two innocent persons must suffer from the tortious acts of a third, he who gives the latter the means of doing wrong must bear the consequence. Moore v. First Nat. Bank, 211 Ala. 367, 100 So. 349, 34 A.L.R. 526; West. Union Tel. Co. v. Tersheshee, 230 Ala. 239, 160 So. 233; Thompson v. Union B. T. Co., 204 Ala. 293, 85 So. 388; 11 Southern Digest, Estoppel, 72.
The appellee, Barbaree, as employe of the Standard Chemical Company, sustained an injury resulting in paralysis of his arm. He brought a suit under Section 7578 of the Code of 1923 and recovered a judgment for the sum provided under the Workmen's Compensation Act. This suit was defended by the employer and was, therefore, an adversary proceeding and not a settlement as dealt with by Section 7574 of the Code. The judgment was rendered in 1934, for weekly payments to run two hundred weeks. The employe, Barbaree, then filed another petition or complaint in 1938 against this same Standard Chemical Company which, as appears from the pleading later disclosed, was based upon the identical injury for which he obtained the first judgment in 1934. The defendant interposed, among others, a plea of res judicata, which to all intents and purposes was sufficient as no demurrer was interposed. The plaintiff relied upon a replication thereto setting up as a bar, by way of an estoppel, a previous promise or agreement.
This replication appellee's counsel contends is but an estoppel and not a contract or agreement. We may concede it is a plea of estoppel, yet it is predicated upon an oral promise or agreement not to be performed within a year, which is forbidden by the Statute of Frauds, and also forbidden by Circuit Court Rule 14, which reads as follows: "No private agreement or consent between parties or their attorneys, relating to the proceedings in any cause, shall be alleged or suggested by either against the other, unless the same be in writing and signed by the party to be bound thereby." Kirkland v. C. D. Franke Co., 207 Ala. 377, 92 So. 472; Brunnier v. Hill, 204 Ala. 403, 85 So. 691, and cases there cited. See especially the case of Norman v. Burns, 67 Ala. 248, for a discussion of the force and effect of this Rule 14. The replication, if not otherwise faulty, was subject to ground 19 of defendant's demurrer, to the effect, that it failed to charge that the promise or agreement was in writing.
It is generally considered that, as between the parties to a contract, validity can not be given to it by estoppel if it is prohibited by law or is against public policy. 10 R.C.L. page 801, section 112; Vansandt v. Weir, 109 Ala. 104, 19 So. 424, 32 L.R.A. 201.
The writ of certiorari is awarded and the judgment of the Circuit Court is reversed and the cause is remanded.
Reversed and remanded.
THOMAS, BROWN, and KNIGHT, JJ., concur.
On Rehearing.
Application for rehearing overruled.
THOMAS, BROWN, KNIGHT, and LIVINGSTON, JJ., concur.