majority">CHILTON, J.

This was an action of debt by the plaintiff in error, upon an instrument of which the following is a copy: “ Having this day sold Elam Phillips a lot on Government street for $600, and not being able at present to procure a release of dower fromC. B. Stephens’s wife, or my own, I do hereby agree to procure their release within nine months, or forfeit the amount of his note, which will be due in five years from 17th April last.” . Signed by defendant. The declaration contains two special counts upon this agreement, to each of which a demurrer was sustained. The first count, after stating the agreement, avers the note therein mentioned is for the sum of $> 120, and that the defendant failed within the nine months to procure the release of dower, as by the agreement he had stipulated. The second count is similar to the first, except that it sets out the agreement in haec verba.

1. We think the pleader has misconceived the legal import *341of the agreement declared on. If the parties intended that the defendant, upon failing to procure a relinquishment of ■dower, should forfeit and pay to the plaintiff the sum of $120, why did they not thus simply state it in their contract? If the intention of the parties was, that a sum in numero should be forfeited as a penalty, and paid to the plaintiff by the defendant, why refer to the note at all, and why the particularity in stating when the note falls due, as shown by the contract? We think the plain and evident meaning and intention of the parties, to be gathered from the whole instrument is, that the defendant, having sold the lot specified in the agreement for $600 to the plaintiff, and being unable to procure at that time the relinquishment of dower of Mrs. Stephens, as also from his own wife, agrees to procure the same in nine months, or on failure, to forfeit the note of the plaintiff (which he held for $120,) due in five years from the 17th April then last past. He does in effect forfeit the amount of the note, that is, he forfeits his right to collect it, and the note becomes discharged by his failure to comply with his contract. Any other construction, we think would do violence to the intention of the parties. Story on Con. § 234, 237, 243. Nor do we consider the terms in which the instrument is couched, of such doubtful or ambiguous import as that the plaintiff can derive any aid from the rule which requires, that in such cases the instrument must be construed most strongly against the party engaging. This rule, which is not applied where it would operate as an inequitable exaction, as in case of penalties or forfeitures, only obtains, when all other rules of construction fail, and gives place to every other rule. Sto. on Con. § 259.

It results from the construction which we have given the agreement, that the action of debt could not be sustained upon it, being a forfeiture merely of the demand which the defendant held against the plaintiff for one hundred and twenty dollars, and not an agreement to pay that sum. The demurrer to the first and second counts of the declaration was therefore properly sustained.

2. The parol proof offered by the plaintiff explaining the instrument by showing its date, also, that the note therein *342mentioned was for $120, and that the meaning and intention of the parties, by the use of the terms “the amount of his note,” was, that the defendant should forfeit and pay to the plaintiff an amount of money equal to the face of the note, we think, was properly excluded from the jury. The effect of the proof was, materially to vary the terms of the instrument, and according to the well settled law of evidence it should have been excluded. See O’Neal et al. v. Teague, 8 Ala 345, 353; 5 Por. 498; 1 Ala, Rep. 161; 5 Ib. 521.

3. Nor do we consider that the court erred in rejecting the proof offered by the plaintiff of a subsequent promise by defendant to pay one hundred and twenty dollars, as the damages agreed upon by the said written agreement for not fulfilling it. This promise, if valid, materially changes the original agreement, and amounts to a new contract. The original agreement is insisted upon by the plaintiffs as still of force, and there being no new consideration to support the new agreement, or no abandoment of the old one, it follows there was no consideration to support the subsequent promise, and the exclusion of the proof of it could not have prejudiced the plaintiff.

There is no error in the record, and the judgment is consequently affirmed.

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