Moses v. Beverly , 137 Ala. 473 ( 1902 )

tóHÁllPE, J.

In the complaint there are six counts, the first being on an account stated, the second, for work and labor done, and the four last! each declare specially as for the breach of a contract to pay plaintiffs money representing commissions accruing to them from the negotiation by them of a sale by C. W. Zimmerman and C. W. Zimmerman & Co. to defendants of rights to take turpentine from pine 'trees standing on lands situated in Clarke county. According to the averments of the third, fourth and fifth counts plaintiffs acted in the transaction by the employment of and in behalf of the vendors, C. W. Zimmerman and C. W. Zimmerman & Co.; and the, turpentine rights sold extended to the trees comprised in about 50,000 acres of land, and the consideration promised by the defendants was a net price per acre to be paid to the vendors and commissions to be paid to the plaintiffs, which commissions were according to the third count $6,250., and according to the fourth and fifth counts, 12 1-2 cents per acre. Each of these three counts avers that the vendors conveyed the turpentine' rights in accordance with the agreement between plaintiffs and defendants. The sixth count declares on a contract in terms differing in several respects from those described in the other three special counts, and whereby it is averred among other things that “defendants agreed and obligated themselves to pay to plaintiffs the sum of six thousand two hundred and fifty dollars ($6,250) in consideration of the services and labor performed by plaintiffs in bringing about said sale, and' agreed to pay said amount on the execution of a satisfactory conveyance by said Zimmerman and Zimmerman & Co. of the rights aforesaid to defendants.” These special counts each allege with definiteness a contract between plaintiffs and defendants, and* a performance of Avhat, was to be done to entitle the former to its benefits and a breach of the contracts on the paid of defendants. 'They were not subject to the demurrers.

But we are of opinion that neither count of the complaint was sustained by any tendency of tire evidence considered as a whole; and that, therefore, the trial court erred not only in giving the general affirmative charge for the plaintiffs, but in refusing the opposite charge requestéd by defendants. There is no evidence from which it could he inferred that plaintiffs have acted for or under the employment of defendants. All the evidence on the subject shows, they acted for C. W. Zimmerman and C. W. Zimmerman & Co. in making the sale and defendants’ promise was only to pay the price of the lands, though it might be found from the evidence that the price was so fixed as to include plaintiffs’ commissions and it may harm been understood that payment of so much of the price as would he sufficient to cover commission should be made, -directly to plaintiffs. Hence, the failure of the evidence to support the second and sixth counts both of which go- upon the theory that plaintiffs’ demand is for a sum due in consideration of sendees rendered defendants. The third, fourth and fifth counts, respectively, fail of support for the reason that the evidence, including the deed from C. TV. Zimmerman and C. W. Zimmerman-& Co. to -defendants in pursuance of their purchase, shows that what Avas in fact sold the defendants,' Avas not as alleged, thei right to work for turpentine the timber on lands comprising about 50,000 acres, but Avas merely all rights of that character Avhich C. TV. Zimmerman and -C. TV. Zimmerman & Co. or either of them had in the timber owned or controlled by them or either of them in lands situated Avithin a certain described territory said in the. conveyance to contain about 50.000 acres, less 3,000 acres reserved, together Avith such turpentine rights as might he acquired by the vendors within that .territory within a -fixed period; and it was further shown Avithowt 'dispute that 'the rights Avhich AArere in fact so owned, controlled and sold, including all subsequent acquisitions, did not extend to lands in excess of 35,000 acres. A general rule -applying to actions on special contracts generally and applicable here, is that to entitle the plaintiff to recover the contract must be proved substantially as alleged. “A variance in any material matter of description- is fatal to the right of recovery.” — Montgomery, etc. R. Co. v. Culver, 75 Ala. 587; A. G. S. R. R. Co. v. Mt. Vernon Co., 84 Ala. 173.

The evidence is not such as could afford a conclusion or inference that there was any agreement, express or implied, on the, part of the defendants to pay plaintiffs a definite sum on account of the sale which was actually negotiated and for that reason if for no other noi right to recover as upon the first count was shown.

The case as now presented does not seem to require the assignments of errors to- he more specifically passed on. The judgment, will be reversed and the cause remanded.

B overset! and remanded.