Gilliland v. Hawkins , 216 Ala. 97 ( 1927 )


Both counts of the complaint show a breach of contract and some pecuniary damage resulting therefrom. This being true, the counts were not subject to demurrer because they claimed for improper items of damage, or set them out insufficiently. In such a case, as often declared, the appropriate remedy is by motion to strike the objectionable items from the complaint, or by objections to the evidence, or by instructions to the jury. Terrell v. Nelson, 177 Ala. 596, 58 So. 989; W. U. T. Co. v. Hughston, 191 Ala. 424, 67 So. 670.

Count B, alleging that the entire contract declared on was oral, was demurred to on the ground that it appeared to be void under the statute of frauds. It appears, however, from the allegations of this count, that plaintiff paid for the timber, took possession of it, and cut and removed it from the land. That part of the contract within the influence of the statute of frauds was therefore fully executed, and the statute does not apply. City Loan, etc., Co. v. Poole, 149 Ala. 164,43 So. 13. And this action is not based on any breach of the contract to convey the trees, but on the purely collateral agreement to dress the lumber for the purchaser.

The demurrers to the complaint were properly overruled.

Plea A to count A is in effect no more than a plea of the general issue, and its elimination by demurrer was not prejudicial.

Plea 1 to counts A and B sets up, in substance, that the contract for the sale of the timber was executed by a written conveyance thereof, which did not include the alleged agreement to plane the lumber. In legal effect it sets up the parol evidence rule as a bar to the action. It does not show, however, that the deed, as a matter of law, superseded and excluded the agreement to dress the lumber; and manifestly, under the general issue, the principle invoked was available by objection to the proof of such an agreement by parol evidence. Hence, even if erroneous, the sustention of the demurrer to this plea was not prejudicial.

The most important question presented by the record is whether, having introduced in evidence the deed executed by defendants, conveying to him the timber pursuant to their previous parol agreement, and containing no reference whatever to any other consideration therefor than the payment of $1,600 — nothing about the vendor's undertaking to plane the lumber sawed from the timber — plaintiff could nevertheless show such an agreement by the vendors, made by parol, anterior to the execution of the deed, and contemporaneously with the original agreement to sell and convey the timber. Defendants' contention is that the deed expressed the entire contract between the parties, limiting the undertaking of the grantors to a conveyance of the timber for the consideration stated, and that parol evidence of any other agreement, as a part of the consideration for the vendee's purchase, is forbidden by the parol evidence rule.

It will be observed that in the complaint it is alleged that defendants' agreement to dress the lumber at $2.50 per M feet was part of the consideration for plaintiff's purchase of the timber for $1,600. But the testimony shows merely that plaintiff accepted defendants' offer to sell him the timber for $1,600, and to dress it for $2.50 per M. On the face of it, this indicates two separate and distinct agreements upon separate and distinct considerations. No doubt the contract to dress the timber at that price (if made as alleged) was some inducement to plaintiff to buy the timber. But "there is a clear distinction sometimes between the motive that may induce to entering into a contract and the consideration of the contract. Nothing is consideration that is not regarded as such by both parties. It is the price voluntarily paid for a promisor's undertaking. An expectation of results often leads to the formation of a contract, but neither the expectation nor the result is 'the cause or meritorious occasion requiring a mutual recompense in fact or in law.' " Strong, J., in Philpot v. Gruninger, 14 Wall. 570, 577, 20 L. Ed. 743.

The purpose of the deed was merely to convey the timber for the consideration agreed on and paid. There was no occasion for the recital in the deed of an independent undertaking which was itself based upon a separately specified consideration of its own. No advantage to the plaintiff is apparent in making the agreement to dress the lumber an integral part of the contract for the sale and conveyance of the timber. As an independent contract, it is just as effective for every purpose.

Disregarding the technicalities involved, the case presents but four vital questions: (1) Did the parties make the contract to dress the timber, as alleged? (2) Was the contract, as proved, a variance from the contract declared on? (3) If a variance, was the variance waived by defendants' failure to object to the evidence, or to request an affirmative instruction on that ground? (4) If the variance was waived, did the evidence properly show the substantial damage covered by the verdict of the jury?

(1) The question of contract, vel non, was a sharply disputed question for the jury. (2) The contract shown was technically a variance from the contract declared on. (3) If a material variance, it was unquestionably waived by the absence of proper objection *Page 101 to the evidence, or of requested instructions calling the court's attention thereto. (4) The evidence showed items of damage, within the range of jury finding, which substantially support the verdict.

We find no error in the rulings on the evidence, and none of them could have affected the result in the smallest degree.

That part of the oral charge excepted to by defendants correctly stated the rule applicable to the evidence.

The two charges refused to defendants dealing with the credibility of plaintiff's testimony in general, if shown to be willfully false in one material particular, were fully covered by the general oral charge, and their refusal was not prejudicial.

We find no prejudicial error, and the judgment will be affirmed.


ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.

On Rehearing.

Counsel for appellant have presented a very thoughtful and forceful criticism of the more important conclusions stated above.

Among other things, it is insisted that there was in fact no variance between the contract declared on and the one shown by plaintiff's evidence. Count A of the complaint avers that —

"As a part of the consideration for which he agreed to pay for said timber, to wit, $1,600, which sum has been paid to said * * * company by plaintiff, the * * * company agreed with this plaintiff that, in addition to conveying said timber to this plaintiff, they would dress and finish said lumber on a planing mill for the plaintiff at and for the sum of $2.50 per thousand feet, and would maintain a planing mill for that purpose."

Count B avers substantially the same agreement. Plaintiff's testimony is that defendant's representative in making the trade simply said that "he would let us have the timber for $1,600, and that he would dress it for $2.50 per M," and that these were the proposals he afterwards accepted. Notwithstanding that the two proposals were made at the same time, it is certain that each carried its own consideration; and there is nothing to show that, when plaintiff agreed to pay $1,600 for the timber, he bought also for that consideration a contract to have the timber sawed for a stated price. The contract testified to by plaintiff certainly does not in this material particular conform to the contract declared on, and hence the conclusion that there was a variance.

But, looking to the merits of defendants' main contention, viz. that, in the face of their execution of a deed to the timber which recited a consideration of $1,600 and contained no recital of any undertaking by the grantors to dress the timber for a price per thousand feet, plaintiff cannot be allowed to show such an undertaking by any parol agreement made prior to, or contemporaneously with, the execution of the deed, the result would not be different, for this conception of the operation of the so-called parol evidence rule in cases like this is erroneous.

In the case of McGehee v. Rump, 37 Ala. 651, 654, Judge Stone said:

"There is no repugnancy of decision on the general proposition that parol proof shall not be heard, in a court of law, to vary, enlarge, or diminish the binding obligations of a written contract, as between the parties. In suits on such written contracts, if there be no question of fraud in the execution of the instrument, the parties must stand or fall by the evidence they have furnished of their own contract; and what the terms of that contract are, is a question of law for the court, and not a question of fact for the jury. But, when the question presented is not among the controlling or primary purposes of the writing, but concerns an incident, rather than the direct object and aim of the contract, less stringency of rule has generally been enforced. Here commences the conflict of authorities, which, for the welfare and repose of society, it were well to have reconciled. We think we are in safe bounds, when we assert that, in the advancing history of both England and the most of the states of America, we discover a disposition in the courts rather no relax the rule, than to make it more stringent.

"The decided weight of the modern authorities, as our after citations will show, is that the consideration clause of a deed is open to the influence of parol proof, except for two purposes: First, it is not permissible for a party to the deed to prove a different consideration, if such change vary the legal effect of the instrument; and, second, the grantor in a deed, who acknowledges the receipt of payment of the consideration, will not be allowed, by disproving that fact, to establish a resulting trust in himself."

Subject to the two restrictions stated, it has always been held that the consideration in a deed may always be inquired into, and any other or any additional consideration may be shown, if not inconsistent with that expressed in the deed. Henry v. Murphy, 54 Ala. 246, 255; Cowan v. Cooper, 41 Ala. 187; Stringfellow v. Ivie, 73 Ala. 209; Huckabee v. Shepherd,75 Ala. 342; Manning v. Pippen, 86 Ala. 357, 363, 5 So. 572, 11 Am. St. Rep. 46; Hamaker v. Coons, 117 Ala. 603, 610,23 So. 655; and many other cases.

Time and space do not suffice for a review of the authorities on this subject. We refer, however, to the cases of Thomas v. Barker, 37 Ala. 292, and M. M. Ry. Co. v. Wilkinson, 72 Ala. 286, as illustrative of the proposition *Page 102 here affirmed, viz. that a collateral undertaking by one of the parties to do something of value to the other may be shown to have been a part of the consideration for a conveyance of land or personalty, though it is not mentioned in the written conveyance; provided, a valuable consideration is recited in the writing, so that its nature and effect are not changed by proof of the additional consideration. The two cases referred to cannot be distinguished from the instant case. Closely analogous also are the cases of Cowan v. Cooper, 41 Ala. 187; Huckabee v. Shepherd, 75 Ala. 342; Henry v. Murphy, 54 Ala. 246, and Manning v. Pippen, 86 Ala. 357, 5 So. 572, 11 Am. St. Rep. 46.

The case of Thompson, etc., Co. v. Glass, 136 Ala. 648, 654,33 So. 811, citing and approving the case of Naumberg v. Young,44 N.J. Law, 331, 43 Am. Rep. 380, relied on by appellant, dealt with a written contract of leasing, and very properly held that covenants to repair on the part of the lessor could not be shown by parol evidence of an agreement between the parties made before or at the time of the execution of the lease. This is in accordance with the principle of the rule, that the legal effect of the contract cannot be varied by any parol agreement thus made. In the instant case, the parol agreement by the grantor to dress the timber in no wise altered or varied the legal effect of the grant, or the relations of the parties as grantor and grantee. It was strictly collateral and incidental to the purpose of the deed. The subject of the deed was the transfer of title to the timber; the subject of the parol agreement was the dressing of the timber after the title had passed and the timber had been cut and removed by the purchaser.

Under the authorities noted above, it is manifest that the pleas setting up the fact that the timber purchase had been executed by a written deed which did not include the alleged agreement to dress the timber conveyed, present no defense to the action.

Our attention is called to a ruling on the evidence, which was not noticed in the opinion above, though it was in fact duly considered. Plaintiff was asked by his counsel if he "had been through that timber, around that road, with a view to seeing how far it was to this planing mill of the defendant." Over defendants' objection that it called for "incompetent, irrelevant, and immaterial testimony," plaintiff was allowed to answer "Yes." It is urged that the question was bad because it called for the motive of the witness. That, however, is a special ground of objection, not comprehended in the objections actually made, and of course not available now; but, as already declared, the matter was too trifling to have affected the result.

We find no ground for revising our original conclusions, and the application for rehearing will be overruled.

ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.