— 1. The complaint declared'in two separate counts, on two promissory notes. There were three pleas interposed to the entire complaint, — the general issue, failure of consideration, and a special plea of set-off. The plaintiff moved to strike these pleas for the alleged reason, that they were not pleaded to each count separately, hut to the entire complaint, and the motion ivas granted. This ruling was erroneous. If the pleas were good to each count, there was no necessity to plead them to each separately; and, in such case, by interposing them to the entire complaint, each count thereof was pleaded to. If the pleas were defective,— .as the 2nd one evidently -was, — they certainly were not frivolous on their face or irrelevant, and their sufficiency should have been tested by demurrer, and not by a motion to strike. Nor was the 3rd plea irrelevant, or frivolous, even if insufficient. — Williamson v. Mayer, 117 Ala. 253; Powell v. Crawford, 110 Ala. 294.
As to the pleas of the general issue and'failure of consideration, however, defendant was afterwards allowed to interpose them separately to each count. What we have said applies with equal force to pleas 5, 6, 7 and 8. They were not irrelevant, as objected, as a ground for striking them, nor were they frivolous, and should have been tested by demurrer, if deemed insufficient. To the five last named pleas, we refer again hereafter.
2. The complaint described each note as executed by Mrs. J. W. Murphy and Joseph B. Webster, and each, “subject to the conditions of a lease signed by said defendants, dated the 15th day of September, 1898.” The notes introduced had written in red ink across their face, “Rent. note. Subject to conditions of lease,” and bore date 23rd September; 1898. The lease referred to, bore date, 15th September, 1898. Walter I-Iowe, a member of the firm of Glennon & Co., who, as agent conducted the transaction for plaintiff testified, that the notes and the lease were executed the same date, though there was a discrepancy in their dates, and his evidence tends to show that they were executed in reference to *284each other, as parts of the same transaction. After the notes were introduced, without objection, and plaintiff offered the lease, defendant objected, because they did not bear the same date; because the action was not brought on the lease but upon the notes; because the lease was not the foundation of the suit, and because “it does not purport in the face or body of the instrument to be the contract of the defendant, Mrs. J. W. Murphy.’’ The objections were, untenable. Writings such as these, executed with reference to each other and intended by the same parties as one and the same transaction, will be construed as one instrument. — Kelly v. Life Ins. Co., 113 Ala. 453, 463, and authorities there cited. The lease was signed by Mrs. J. W. Murphy and J. B. Webster, and begins, “We J. W. Murphy and J. B. Webster.” ' it was not in dispute that Mrs. J. W. Murphy executed, and was the person referred to in the body of the lease. The proof showed the execution and relationship of the papers to each other.
3. The defendant’s counsel asked Mrs. Murphy, when she was being examined: — “Did you or not have any agreement with, her (plaintiff’s) agents, Messrs. Jas. K. Glennon & Co., about September, 1888, to rent from her the house on Government street No. Ill,” to which question tin; plaintiff objected because it was irrelevant and immaterial. Defendant’s attorney stated to the court,, that he expected to show by the witness, that there was. ' an agreement between the plaintiff and the witness, Mrs. Murphy, that she should obtain from the plaintiff a written lease vesting in her a leasehold interest from Nov. 1, 1898, to the 31st October, 1S99, to said property, and that it was agreed that such written lease should contain a clause that the landlord should put the property in thorough repair and patch the roof so that it would not leak, and that although Mrs. Murphy and Mr. Webster, the defendants, signed the(ir part of the agreement, they never obtained the written lease which the agreement; (‘ailed for. It is certainly true, that at common law, the burden of repair-whs'always cast on the. tenant, and the duty to repair, when the landlord has not expressly to do so, unless otherwise regulated by statute, rests on the tenant. — Rothe v. Bellingrath, 71 Ala. 55; *28512 Am. & Eng. Ency. Law, 721, 722, and authorities cited. But, “it is a' settled rule of law, that when the whole of a contract has not been reduced to writing, so much of it as is separable and distinct, may he proved by oral evidence, even though contemporaneous with the writing, without infringing the principle, that such evidence is inadmissible to contradict or vary the legal effect of a writ ten instrument. — Huckabee v. Shepherd, 75 Ala. 342; 1 Addison Cont. (Am. Ed.) 243; 1 Gr. Ev. § 285 a. When for example', a tenant promises in Avriting'to pay a stipulated rent to his landlord, and so much of the contract as was intended to state the liabilities of the landlord is not reduced to writing, but Aims left to rest in parol, it may be shown by oral evidence that he agreed Avith the tenant, although contemporaneously Avith the execution of the tenant's rent note, to make repairs on the rented premises, or incurred other like liability.”' — Vandergrift v. Abbott, 75 Ala. 487. This rule, howcA'er, does not permit the oral contradiction of that part of the agreement. AAdiich is reduced to Avriting, and is in itself complete. Powell v. Thompson, 80 Ala. 54, 55. In the Varulergrifó cast' cited, it Avas said by the court, “It has been repeatedly decided that, in an action against a tenant, if he is entitled to damages in consequence of the failure of the landlord to repair according to a covenant in a lease, or an agreement made at the time, of the contract of renting, he may recoup the damages by way of reducing or extinguishing the rent. — Waterman on Set-off, 580; Culrer v. Hill, 68 Ala. 66; Westlake v. DeGraw, 25 Wend. 669; Rowe v. Baber, 93 Ala. 422. Under the foregoing Avel 1 settled principles, the question proposed, if pertinent to the pleas on Avhich the case AATas tried, should have been allowed to be. answered, but the plea of set-off and recoupment had been stricken, and it Avas not responsiA’e to the other pleas of the general issue and failure of consideration. From what wo have said above, however, the error in striking pleas 3 and 5 to 8, inclusiAre, for the objections interposed, Avill the more plainly appear.
The plea of failure of consideration on AAdiich issue was joined without objection, was to each count of the <'omplaint separately, “that the notes sued on were Avith out consideration.” Tire witness, Mrs. Murphy, testified *286that J. W. Murphy ivas her husband; that he was in possession of said rented property — No. 111 Government street, — from the 1st .of September, 1898, to the 1st day of January, 1899, and that he continued to occupy said premises after January 1,1899, to' the 27th March, 1899; that she and her husband lived together. The plaintiff’s counsel asked her, if she was not the Mrs. Murphy that went down to Glennon to re-rent the house for the coming year from November 1, 1898. She replied in the affirmative. Thereupon her counsel moved, and the court on the motion excluded all the evidence of said witness above set out, because it ivas irrelevant and immaterial. We are unable to discover that such evidence was relevant to the issues on which the court forced defendant to try.
4. On the examination of Mr. J. W. Murphy, the husband of defendant, Mrs. J. W. Murphy, the defendant asked him, “Where did you live; from November 1 ,1897, to November, .1898?” Plaintiff interposed the objection of irrelevancy and immateriality. Defendants then stated to the court, that they expected to show, that the said witness, Mr. J. IV. Murphy, was occupying the house as tenant of the plaintiff in September, 1898, and that he got a new lease of the house from the plaintiff in September, 1898, for the year to commence on November 1,1898, and to end on October 31,1899, and that he continued to occupy the house until March 27th, 1899. The. court, nevertheless, sustained plaintiff’s objection, and would not permit the question to be answered. The question asked was preliminary and necessary to be answered in making the proof the defendants proposed to make in connection with it; and if the witness answered, as the question propounded implied he would, — in the expectation of defendants in asking it, — the answer and the proposed evidence in connection therewith, was pertinent to the issue of failure of consideration, since, if ir had been- shown as proposed, that plaintiff, at the time of her alleged lease of the lot to defendants, had proAdously leased it to another, aat1io was the plaintiff’s tenant for the past year, and such prior tenant Avas in possession at the time and continued to occupy under hi.-? lease, after the time plaintiff leased the same to defend*287ants, and tlieir lease term was to begin, then, it is evident plaintiff had no right to lease the lot to defendants. The facts-proposed to be proved, if shown, presented a complete defense to the action under the plea of failure of consideration. The defendants in such case, did not and could not enter under their lease, because debarred from doing so by plaintiff’s prior lease of the premises to and the occupancy of them by another tenant with superior right. — Bain v. McDonald, 111 Ala. 269, 274; King v. Reynolds, 67 Ala. 229.
5. From what has been said, it will appear that errors 25, 28 and 29, as assigned, are of no avail, since the excluded proof in each instance related to pleas which were stricken, and not to any issue on which the case ivas tried, and the questions referred to in the 25th and 28th assignments called for the uncommunicated motive of the AA'itness. The proof excluded, — the basis of assignments 26 and 27, — Avas pertinent to the plea of failure of consideration and should have been allowed.
6. There Avas no error in refusing charges 1 and 3 re quested by defendants. They Avere abstract, as there was no proof of any such verbal contract of renting such as is hypothesized in said charges. All evidence tending to shoAV such a contract was excluded by the court. There Avas no plea of the statute of frauds which the charges may have been framed also to meet.
There was evidence tending to establish charges 2, 4 and 5, — that given by Mr. Murphy, Mr. Howe and defendant, Webster, — -and if the facts hypothesized therein Avere true, they establish a failure of consideration. Whether the landlord’s part .of this lease Avas intended for Mr. or Mrs. J. W. Murphy, is a matter of dispute, raising a question proper for the determination of the jury under all the evidence, under proper instructions by the court. In any future trial that may occur, in bringing out the evidence and in charges given or refused, the name J. W. Murphy should, to prevent confusion, be employed AAdth the prefix Mr. or Mrs., so as, in each instance, to clearly identify the person referred to.
For errors indicated, the judgment of the lower court is reversed and the cause remanded.
Reversed and remanded.