The trial was had in the court below by consent of the parties, without the intervention of a jury, and the bill of exceptions purporting to state all the evidence, on appeal, the statute devolves on this court, the duty of reviewing the findings and conclusions of facts on which the judgment is based.
As we collect from the record, the plaintiff proposed to support a recovery on the count for money had and received, on the hypothesis that his debtor, L. Y. White, had deposited with the defendant the promissory notes of one Simpson for an amount exceeding his indebtedness to the plaintiff, with instructions to pay the indebtedness to the plaintiff when collection of the notes was made. That the defendant had collected the notes, and, on demand, had refused to make the payment to the plaintiff. If it be conceded that the preponderance of the evidence supports this hypothesis, the plaintiff had *423the election to accept or reject the trust thereby created for his benefit. The duty of election rested upon him, and when, as the undisputed evidence shows the fact to be, with full knowledge of the facts, lie resorted to and pursued to judgment his legal remedies against his original and primary debtor, the creator of the trust, he manifested conclusively the election to reject the trust-. Henry v. Murphy, 54 Ala. 246; Coleman v. Halchar, 77 Ala. 217 ; Fowler v. Bowery Savings Bank, 10 Am. St. Rep. 479, and note, 487. Upon this count of the complaint there could not o*f consequence be a recovery.
And if it be conceded, that the evidence supports the making of the promise on a sufficient consideration, alleged in the second count of the complaint, the transaction involves a corresponding promise on the part of the plaintiff, the performance of which was the consideration of the promise of the defendant. The benefit which it was intended should accrue to the defendant, was the forbearance of the plaintiff to prosecute the garnishment against Simpson, thereby enabling the defendant to collect from Simpson the debt it was the object of the garnishment to subject, and saving the defendant from the occasion and expense of propounding his claim to such part of the debt as he claimed in priority of the garnishment-. The consent of the plaintiff that Simpson should pay the debt to the defendant, was useless and unmeaning, unless thereby was imposed on the plaintiff, the duty of forbearance in the continued prosecution of the garnishment. Though this was the duty resting upon the plaintiff, the evidence is matter of record and undisputed, that he continued the prosecution of the garnishment to a final judgment against the garnishee, working a total failure of the consideration of the promise of the defendant. There can be no recovery on a contract or promise the consideration of which the promisee has by his own voluntary act annulled and destroyed.
Nor can there be a recovery on the writing which is declared upon in the third count of the complaint. If it is capable of a construction which will import a promise to pay plaintiff the debt of L. V. White, the promise is gratuitous — there is no consideration to support it appearing on the face of the writing. The statute of frauds, (Code, § 1732), not only requires that promises to pay the debt of another shall be in writing, but that the *424writing’shall express the consideration on which the promise is founded. The failure to express a valuable consideration for the promise is as fatal to its legal validity, as would be the failure to reduce it to writing. Bolling v. Munchus, 65 Ala. 558; Foster v. Napier, 74 Ala. 393.
There is no aspect of the case as presented by the record, in which the plaintiff was entitled to recover. The judgment of the city court must be reversed, and a judgment here entered that the defendant go hence, and recover of the plaintiff the costs of suit in the city court, and the costs of appeal in this court and in the city court.
Reversed and rendered.