
    Culver v. Caldwell, Adm’r, etc.
    
      Action for Breach of Contract.
    
    1. Contracts; pleading; consideration; illegality. — The counts of a complaint showed that plaintiff was a surety on the official bond of the chief clerk to the Commissioner of Agriculture; that said Commissioner of Agriculture represented to plaintiff that said chief clerk was indebted to> the State of Alabama and that plaintiff as surety on his bond was liable for said indebtedness; that thereupon plaintiff and said commissioner agreed that plaintiff was to give his note-for $1,000 to said commissioner, plaintiff to he thereby relieved of all claim against him as surety on said bond, and the commissioner agreed to refund said sum “as fast as I can spare same from my salary as State Agricultural Commissioner;” and that plaintiff had given and paid said note,' but- that defendant [said commissioner), had failed to refund said money. Held: That the complaint, being silent as to how plaintiff was to be relieved from liability on said bond, was not demurrable as showing that said contract was illegal or against public policy; and that the note given was prima facie a consideration for defendant’s agreement.
    2. Same; agreement, when not void for uncertainty. — An agreement to refund to another a certain sum “as fast as I can spare same from .my salary” is not void for uncertainty, and is to be construed as giving the promisor a reasonable time to acquire from the expected source the money to be refunded, and not to acquit him of the obligation to refund in casé he found it inconvenient to spare- money from that source.
    3. Appeal; review; motion to strilte. — The ruling On- a motion to strike a' part of a pleading will not -be reviewed unless ■ it is shown by a bill of exceptions. ’ 1
    4. Evidence; parol, what may he shown hy. — In an action for breach of contract, where an issue in the case- was whether a State officer,- on whose bond- plaintiff was surety, was liable to the State on said bond, it. is proper to allow the State Examiner of Public Accounts to. testify that he made an examination of accounts of said officer; that fact being provable by parol and relevant to the .issues.
    
      5. Same; admissions by defendant. — In an action for breach of contract in failing to refund to plaintiff certain money which defendant agreed to refund, in consideration of plaintiff paying that sum in discharge of a liability of plaintiff and defendant to the State, by reason of an indebtedness of defendant’s clerk on his official bond, evidence is admissible as to admissions made by defendant (State Commissioner of Agriculture) that he had caused entries to be made in the department’s books showing sales of fertilizer tags which were not sold.
    6. Evidence; variance; collateral matters. — Where the giving of a note was only collaterally involved in a suit, and the complaint indicated that there was but one signature to the note, the fact that it in fact bore two signatures does not constitute a material variance.
    7. Evidence; report of State Examiner of Public Accounts. — The report of the State Examiner of Public Accounts, showing an indebtedness of a public officer, made* after an agreement between two persons contemplating the payment of such indebtedness, is not admissible in evidence in an action for a breach of said agreement.
    8. Trial; joining issue on plea; effect of. — Where an issue is joined on a plea, without testing its legal sufficiency by demurrer, and there is evidence tending to prove its averments, the general affirmative charge cannot properly be given for plaintiff.
    Appeal from the 'Circuit Court of Bullock.
    Tried before Hon. A. A. Evans.
    ' This was an action by G. M. Hanson against I. F. Culver to recover damages for breach of contract. Upon the death of the plaintiff the suit was revived in the name of Caldwell as bis administrator.
    Tbe complaint was in three counts, as follows:
    “Count 1. — The plaintiff claims of the defendant the sum of $2,000, for this, to-wit: That heretofore, to-wit, on the 3d day of August, 1896, the defendant was elected Commissioner of Agriculture of the State of Alabama for the term of two years, beginning on the 1st day of September, 1896, and ending on the 31st day of August, 1898; that on the 1st day of September, 1896, the defendant entered upon the discharge of the duties of said office of Commissioner of Agriculture and continued to be such commissioner and to discharge the duties of such office during the full term of years to which he had been elected as aforesaid; that I). F. Sessions was appointed by the defendant as chief clerk in the Department of Agriculture of the State of Alabama; that plaintiff was one of the sureties on the official bond, which said Sessions had executed as such clerk; that on or about the 15th day of September, 1897, the defendant, who was then and there the 'Commissioner. of Agriculture of the State of Alabama, as aforesaid, represented to the plaintiff that said'Sessions was, as such clerk, indebted to the State of Alabama, and that the plaintiff and the other sureties on the said bond of said Sessions were liable for such indebtedness. And plaintiff avers that defendant was also liable for such indebtedness of said Sessions if any such indebtedness really existed. In consequence of these statements and representations made by the defendant, the plaintiff and defendant entered into the following contract and agreement, to-wit: The plaintiff agreed to execute and deliver to the defendant his, the plaintiff’s negotiable promissory note for one thousand dollars, payable at the First National Bank of Montgomery, Alabama, thirty days after date, to the order of the defendant; and the defendant agreed that upon the execution and delivery to him of said note he would release the plaintiff from liability on the bond of said Sessions, as such clerk in the Department of Agriculture, and that he, the defendant, would repay to the plaintiff the sum of one thousand dollars during his term of office as Commissioner of Agriculture of the State of Alabama. And plaintiff states and avers that he has complied with all the terms and provisions of said contract and agreement on his part; that he executed and delivered the said note for one thousand1 dollars to the defendant, which was due and payable as aforesaid, and that he, plaintiff, paid said note in full at its maturity, on October 15th, 1897. But plaintiff states and avers that said defendant has broken his said contract and agreement in this, that, although defendant obtained the sum of one thousand dollars on and from the proceeds of said note, yet he has not repaid to plaintiff during defendant’s said term of office as Commissioner of Agriculture the said sum of one ■thousand, dollars nor any part thereof, and plaintiff avers that said sum of one thousand dollars, with the interest- thereon, is still due to plaintiff and is unpaid, to the damage of the plaintiff as aforesaid.
    “Count 2. — Plaintiff-- claims , of defendant the sum of two thousand dollars' as damages for the breach of a contract- entered into by and between the plaintiff and the defendant on or about the 15th day of September, 1897, wherein and whereby the defendant, in consideration of the execution and delivery to him,'- of the plaintiff’s negotiable promissory note for $1,000 payable at the First National Bank of Montgomery, Alabama, thirty days after date, agreed and promised to release plaintiff from liability as a surety' on a certain official bond, executed by D. F. Sessions as- chief clerk in the office of the Department of Agriculture of the State of Alabama, and to repay to the plaintiff during the term of office of the defendant as Commissioner of Agriculture, to-wit, during, the -period from the first day of September*, 1896, to the 31st day of September, 1898, the said sum of one thousand dollars. And plaintiff avers that he executed and delivered said note to tbe defendant who Avas paid or received, to-Avit, one -thousand dollars thereon; that plaintiff paid said note in full at its maturity on October 15th, 1897, but-that -said defendant has; broken said contract in this* viz.: that although often requested so to do, he did not repay to- plaintiff said sum of money or any part thereof during his term of office as Oommisdsoner of Agriculture of the State of Alabama, and the :said defendant wholly refuses and neglects to pay to the-plaintiff the said sum pf money or any part thereof, to the damage of the plaintiff as aboAm started.”
    ■ Count 3 is substantially the same as the second count, except that it sets out, the contract as copied in, the opinion.
    The defendant demurred to the several counts upon the grounds (1st) That the agreement alleged was illegal and contrary to public policy; (2d) that it did not appear that there was any consideration for said) contract; (3d) that it appeared therefrom that the plaintiff, in the execution of the note therein referred to, Avas arranging the payment of a debt for which he was liable, and it does not appear that there was any liability therefor on the part of the defendant, and the agreement then made by defendant and stated in said count is shown to be without any consideration whatever.
    The following, additional ground, of demurrer was assigned to the 3d count., namely: (1th) That said count-does not show that the defendant was at any time able to spare the amount claimed from his salary as 'Commissioner of Agriculture. These demurrers were overruled.
    The judgment entry shows that a motion was made to strike a portion of the complaint and that the motion Avas overruled; but the bill of exceptions makes no reference. to this motion and the ruling thereon.
    J. G. Cowan, Assistant Examiner of Public Accounts, was examined as a witness for plaintiff, and was asked this question.: “Did you. make an official examination of the books of the Commissioner of Agriculture?” The defendant objected to said question because it called for secondary evidence .without a. predicate being laid therefor, which objection was overruled and defendant ex-, cepted. The witness replied that he had made such examination about August or September, 1897. The witness then identified his report of said examination addressed to the Governor of Alabama, and dated September 1.7th, 1.897, and the same Avas offered in evidence by plaintiff. The defendant objected to its introduction on the ground that it Avas illegal, irrelevant, res inter alios acta, and not evidence against the defendant. This objection Avas overruled, and defendant excepted.
    The other facts necessary to an understanding of the decision are sufficiently shoAvn in the opinion;
    At the request of the plaintiff the court charged the jury, “If you believe the evidence, you will find for the plaintiff,” to the giving of which charge defendant excepted.
    From a judgment fpr plaintiff defendant appeals.
    Nokman & Baldavin and D. S. Bethtjne, for appellant.
    The first, count, showed that plaintiff Avas pro-Adding for the payment of an obligation fór which he was at the time’ liable, and shows m> consideration for defendant’s agreement. — Johnson v. Sellers, 33 Ala. 205; Cobb v.Comclery, 94 Am. Dec. 370; 6 Am. & Eng. Enc. of Law (2d ed.), 750; Bolling v. Munchus, 65 Ala. 555.
    The report of the Assistant Examiner of Public Accounts, ivas only prima facie evidence of the facts therein stated. — Stanley v. State, 88 Ala. 157.
    The question to the witness CoAvan and his answer’ thereto Avere not allowable. — Code, § 1879.
    The agreement was illegal and contrary to public policy, in that it Avas a bargain by a surety on the bond of a public officer Avith a public officer, for a release from additional liability on such bond, and the official Avith whom the bargain was made Avas the head of the department in which the officer was employed for whom plaintiff was surety. — Hill v. Free-mo/n, 73 Ala. 200.
    The evidence did not show that defendant Avas evei able to spare the amount from his salary. — Simions v. Johnson, 108 Ala. 241.
    L. M. Moseley and Moore & Teague, contra,
    cited as to the illegality of the contract, Moog v. Strang, 69 Ala. 101.
   SHARPE, J.

G-. M. Hanson brought this suit and herein Avill be referred to- as plaintiff. After obtaining judgment he died, and the appeal is taken as againsi the administrator of his estate.

Plaintiff and another Avere sureties on the official bond of the chief clerk of the Department of Agriculture, and defendant was' Commissioner of Agriculture. The chief clerk difed and shortly thereafter the examiner of public accounts entered upon an examination of accounts in the Department of Agriculture and incidentally upon the investigation then had, plaintiff’s co-surety paid the State through defendant $4,000 on a? indebtedness, real or supposed, amounting ' to a little more than $5,000 and which defendant claimed accrued on account of acts and conduct of.the chief clerk and not of himself. Blaint-iff being requested by defendant to pay or assist in paying another thousand dollars at first objected, but' those two reached a mutual understanding whereby plaintiff gave his note -payable to- defendant who was to sell the same and apply the proceeds on- the balance supposed to be due the State, and at- the same time defendant gave the plaintiff the writing here sued on, which is as follows: “Union Springs, Ala., Sept. 15th, 1897. Received of (1. M. Hanson hisi note for one thousand dollars payable one month from date at First National Bank of Montgomery, Ala., and I agree with him that this will relieve him entirely of all claim against him as surety on bond of the late I). F. Sessions as¡ chief clerk ’of Agricultural Department, Sítate of Ala., and I agree to refund same to said G. M. Hanson as fast as I. can spare same from my salary as State Agricultural Commissioner. ['Signed] I. F. Culver.” Failing in an attempt to raise money on the note as originally made, defendant without plaintiff’s knowledge obtained thereon the signature of plaintiff’s cosurety, then' ha\ the note discounted, paid the State the proceeds, and plaintiff afterwards paid the note. The breach alleged Of defendant’s agreement is a failure to refund according to its terms. .

Treating first of the questions raised by the demurrer, it is to be observed that the complaint is silent as to how the defendant was to perform that part of ' the agreement winch stipulates for the relief of plaintiff from liability on the clerk’s • official bond, and ■ that neither in the agreement itself as set out in the third count, or in other parts- of the complaint is there anything inconsistent with a contemplated dislcharge o'f that liability by payment to the State, or in some other possible Avay, invohdng no offense to public policy. But that anything Avas due the State from the clerk and his sureties is not disclosed by the complaint, the averments being merely that defendant “represented” such to be the fact, and for all that appears in the complaint the liability from Avhich the plaintiff was to he relieved, may have: been that" existing, inchoately by reason’of -his suretyship, irrespective of a breach of the bond. These averments doi not warrant, the assumption, that the note which purports to form the consideration of the agreement in suit, was a mere provision for paying the plaintiff’s own debt. Prima facie the note given defendant is a consideration.for his agreement.

Defendant’s promise to refund is not void for uncertainty.. It is not conditioned upon defendant’s ability to spare from his salary, but that event is¡ named only to fix a time for performance. The stipulation in that regard was meant only to give tire defendant reasonable time to acquire from the expected source, the money to be refunded, and not to acquit him of the obligation to refund in case he found it inconvenient to spare money, from that source. When it can be done consistently with the expressed intention of the parties, contracts must be given a construction by which they will be upheld rather than defeated; and this rule has been applied in cases, closely analogous to- the present one. See Nunez v. Dantel, 19 Wall. (U. S.) 560; Lewis v. Tipton, 10 Ohio St. 88; Ubsdell v. Cunningham, 22 Mo. 124; Jones v. Eisler, 3 Kan. 128. It must be held as a legal conclusion that a reasonable time for performing the stipulation in question had expired before the bringing of this suit which occurrence was long after cessation of' defendant’s official term and salary. The demurrers were properly overruled.

The bill of exceptions fails to show any exception re-, served to> the ruling on defendant’s motion to strike part of the complaint, and consequently that ruling cannot be reviewed. — Holley v. Coffee, 123 Ala. 106.

It was proper to allow the examiner to testify he made the examination of accounts, etc. That fact considered apart from the examiners report, was provable by parol, and was relevant as a circumstance attending and probably materially influencing the transaction between these parties.

It was also proper to admit the examiner’s testimony of admissions, made by-defendant to. effect that he had. caused entries to' be made in the Department’s books showing sales of fertilizer tax tags which were not sold.. That evidence bore on the issue as to whether there was in fact an indebtedness of the chief clerk to the State.

The note plaintiff gave Avas but collaterally involved in this suit, and the fact that it bore two signatures instead of one as indicated by the complaint did not make a material variance. The objections to the introduction of that nóte and those made to the writing sued on, Avere not Avell, taken.

The examiner’s official report, however, should Imve been excluded. It appears to. have been subsequent, to the agreement between these panties and as to them Avas subject to objection as res inter alios acta. There is nothing in the statutes providing for such reports Avhich gives them effect as evidence of facts AAÚth Aihich they deal.

The second plea is as follows: “The want of consideration, in that the contract made by the defendant was made solely to induce Hie plaintiff to pay the debt due by 1). F. Sessions as chief clerk in the Department of Commissioner of Agriculture of the State of Alabama, for Avhich debt the plaintiff as one of the sureties on the bond given by the said D. F. Sessions as such clerk Avas liable, and that the note referred to in the complaint Avas giAren by the plaintiff for the purpose of being discounted and the proceeds thereof applied to the payment of the debt of the said D. F. Sessions due as aforesaid:” Substantially the same facts are set up in the third .plea as constituting a failure of consideration for defendant’s agreement to' rófund. The sufficiency of these pleas is not a question presented by the record. They Avere neither demurred to nor replied to, 'and the rule is that if a plea, on which issue is joined be proved, the issue should be determined in favor of the defendant without regard to Avhether the plea is good or bad. — Wellman v. Jones, 124 Ala. 580; Taylor v. Smith, 104 Ala. 587; Winter v. Poole, 100 Ala. 503; Western Assurance Co. v. Hall, 120 Ala. 547. It is enough to say, AvithoUt setting out the evidence, that defendant’s testimony tends to support all the facts averred in these pleas and a like tern dency is found in plaintiff’s own testimony Avherein he stated among other things that “said note was made for the purpose of being discounted to enable the defendant to. raise the money to pay on the deficit of the said D. F .• Sessions as chief clerk in the Department of Agriculture.” In vietw of-the pleading and evidence the charge requested by the plaintiff should have been refused, and the jury should have been allowed, to determine whether the facts required a finding for the plaintiff or for the defendant.

Reversed and remanded.  