The Birmingham age-herald., 1903-03-19

Not Independent and Collateral: Plead ing and Practice.-Where prior to the execution of notes given for the rent of a certain building and as an inducement to the rental of said property and the
 execution of said notes the owner of said
 property promises and agrees with the
 lessees that he would repair said build.
 ing, and contemporaneously with the
 execution of said notes written lease is
 executed by the party, but this lease con
 tains no stipulation or promise on the
 part of the lessor to make such repairs,
 such agreement to make the repairs is
 not independent of and collateral to the
 lease; and not being expressed in the
 written contract of lease Is not binding
 upon the lessor; and in action upon
 the notes for the rent of said building the defendants cannot set off damages claimed to have been suffered by reason
 of the breach of the promise to repair said building.
 2. Contract of Lease; When Agreement
 to Make Repairs Not Independent ana
 Collateral; Admissibilty of Parol Evi-
 dence.-Where, prior to the execution of
 notes given for the rent of a certain building. and as an inducement to the rental of said property and the execution
 of said notes the owner of said property promises and agrees with the lessees that ne WOuIu repalr Salu DullulnR, anu Coll- temporaneously with the execution or
 said notes a written lease is executed by the party, but this lease contains no stipulation or promise on the part of the , lessor to make such repairs, such agree ment to make the repairs Is not indepen- dent of and collateral to the lease; and in an action upon the notes given for the
 rent of said building, 1t Is not competent for the defendants to show by parol evil dence that the oral promise was made by
 the lessor prior to the execution of the lease contract to repair the building, such evidence having a tendency to vary or materially affect the written contract
 of lease.
 B. Action Upon Rent Notes; When Lease Not Admissible in Evidence Without Proof of It's Execution.-In an action up- on notes given for the rent of certain | premises, where the complaint counts up- on said notes alone written contract of l lease executed contemporaneously with | the execution of said notes and as a part | of the same transaction Is not admissible I in evidence without proof of it's execution; and this is true, although the execution l of said lease contract is averred in plain l tiff's replication to certain special pleas. 4. Trial and Its Incidents; Admission of Attorneys; Execution of Instrument.-In
 an action upon notes given for the rent of certain premises, a written lease exc 
 cuted contemporaneously with the execu-
 tion of the note sued on and as part
 of the same transaction is not admissible
 in evidence without proof of Its execution,
 unless the execution Is admitted; and the
 statement of the attorneys of the de-
 fendant during the trial of the case, after
 the court had declined to allow them to
 introduce certain testimony, that they ex-
 peeted to prove that several weeks prior
 to the execution of this lease" etc, does
 not constitute an admission of the execu- tion of said lease in such sort as to re- lieve the plaintiff of the necessity of prov ing the execution thereo..
 B. Pleading and Practice; Variance Be- tween Allegations in Complaint and
 Proof.--In the an action counting upon a promissory note, where the complaint
 does not attempt to set out the note sued on in haec verba, and the suit is against "J. T. and w. M. T., doing Business as the T. Foundry and Machine Works"
 and the note introduced in evidence Is
 signed T. F. and M Wks." by 'J. IT,"
 there is no variance between the allega-
 tions in the complaint and the note, and such note is admissible in evidence.