Basford v. Parran

delivered the opinion of this court.

The true and only question legitimately belonging to this case, is tile construction or effect of the agreement between Mrs. Hutchins and Mr. Parran, the appellee, which related to the forbearance to sell, on the part of the latter, under his execution against Lyons. But this question in fact is noi, raised, but only foreshadowed, by the present record.

By virtue of the agreement referred to, Mrs. Hutchins executed her two notes, for $750 each, to the said Parran, which were not paid upon maturity. Subsequently another contract was entered into, which is set out in the record, between Mrs. Lyons (her husband, Michael Lyons, and her mother, ¡VIre *366Hutchins, being dead,) and the said Parran, relating to the same subject matter, and referring to and making disposition of the notes executed by Mrs. Hutchins under the previous agreement. The present suit is instituted against Mrs. Hutchins’ administrator, the appellant, to recover the amount due on those notes. Evidence was submitted on the part of the defendant to show the circumstances or consideration upon which the notes were executed, and that the consideration had either entirely failed, or that the plaintiff had abandoned or forfeited the contract by renewing his process against Lyons. Thereupon the plaintiff offered the agreement with Mrs. Lyons as rebutting evidence. To the admissibility of this agreement, as legal evidence, the defendant objected, and this is the single question before us on this appeal.

The purpose of the defendant’s testimony was to show, as we have said, a failure of consideration for the contract, in pursuance of which the notes were given; or, an abandonment of its provisions by the appellee, in resorting again to his original process against Lyons. No objection was made to the admission of this testimony, and whether it was legal and sufficient to establish that for which it was offered, is not for us now to say. But if it was sufficient to show that Mrs. Hutchins, or her estate, had been discharged from liability for the notes, surely no subsequent acts or dealings between Parran and Mrs. Lyons, or any other person, without the privity or consent of Mrs. Hutchins’ representative, could have the effect of reviving her liability upon those notes, and it matters not what arrangement or disposition, however apparently equitable, was proposed to be made of them under the new agreement. This whole contract, as it relates to the first agreement, was res inter alios, and therefore not admissible as evidence against a party not privy to it. While the agreement between Mrs. Lyons and Parran might be binding upon themselves, it could nevertheless have no effect in binding others not parties to it.

The view thus expressed settles the only question involved upon this record, and thus disposes of the whole case as we find it. We do not feel at liberty upon this appeal to pass upon ihe original contract, as no such point is raised, That *367contract, and the subsequent conduct of the parties in regard to it, as may be illustrated upon a new trial, must all depend upon their own peculiar merits. 'The suggestion that we should withhold a procedendo is therefore not adopted.

Judgment reversed and procedendo awarded.