Nunnally Co. v. Bromberg & Co. ( 1928 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] An action ex contractu and ex delicto may not be joined in the same count of a complaint. Southern R. Co. v. McIntyre,152 Ala. 223, 44 So. 624; Sudduth v. Central of Ga. R. Co.,197 Ala. 393, 73 So. 28. Contracts must be interpreted in the light of surrounding circumstances. Evidence calculated to explain the subject of the contract was admissible. 24 Cyc. 1044; Pollard v. Maddox, 28 Ala. 321; Moore v. Barber Pav. Co.,118 Ala. 563, 23 So. 798; Greenleaf on Evi. § 286; T. C. R. Co. v. E. A. R. Co., 73 Ala. 426; 22 C. J. 1186, 1191; Chambers v. Ringstaff, 69 Ala. 140; 16 Rawle C. L. 562; Meyer Bros. v. Mitchell, 75 Ala. 475; Houghton v. Moore, 141 Mass. 437; Mobile County v. Linch, 198 Ala. 57, 73 So. 423; Hughes v. Wilkinson,35 Ala. 453; Tate v. Cody, 11 Ala. App. 350, 66 So. 837; L. N. R. Co. v. Higginbotham, 153 Ala. 334, 44 So. 872; Cox v. O'Neal, 142 Ala. 314, 37 So. 674; Pierce v. Tidwell, 81 Ala. 299,2 So. 15. The transaction was in legal effect a transfer and assignment of the rights of defendant under its lease from the owner. 35 Cyc. 1002; 16 Rawle C. L. 824; Aye v. Phil. Co.,193 Pa. 451, 44 A. 556; Davis v. Simpson Coal Co., 162 Ala. 424,50 So. 368; 1 Taylor, Landlord and Tenant (9th Ed.) 16. The motion to transfer to equity docket should have been granted. Code 1923, § 6490; Townsend v. Cowles, 31 Ala. 428; Corley v. Vizard, 203 Ala. 564,84 So. 299; 16 Rawle C. L. 568; Gates v. Green, 4 Paige (N.Y.) 355, 27 Am. Dec. 68; Burch v. Driver, 205 Ala. 659, 88 So. 902; Campbell v. Hatchett, 55 Ala. 548; 10 Rawle C. L. 3089; Prestwood v. Carlton, 162 Ala. 327, 50 So. 254. The measure of damages for breach of stipulation to put the lessee in possession is the value of the lease. Snodgrass v. Reynolds, 79 Ala. 452, 58 Am. Rep. 601; Paris v. Johnson, 155 Ala. 403, 46 So. 642. Special damages must be specially pleaded. Danforth v. Tennessee C. R. Co., 99 Ala. 331, 13 So. 51; 4 Michie, Ala. Dig. 664. Special or prospective damages are not recoverable when the lessor has no knowledge of the circumstances which would give rise to such damages. 16 Rawle C. L. 729; Hargreaves v. Kimberly, 26 W. Va. 787, 53 Am. Rep. 127; Gunter v. Beard,93 Ala. 227, 9 So. 389; Lieberman v. Graf R. Co., 174 A.D. 774,161 N.Y. S. 567; 35 C. J. 56; 17 C. J. 669; Bromberg v. Eugenotto, 162 Ala. 359, 50 So. 314.

London, Yancey Brower, of Birmingham, for appellee.

It is not permissible to argue in bulk numerous assignments of error involving different propositions of law. Sup. Ct. rule 10; Nor. Ala. Tr. Co. v. Taylor, 3 Ala. App. 456, 57 So. 146; Southern R. Co. v. Cunningham, 152 Ala. 147, 44 So. 658; Irby v. Kaigler, 6 Ala. App. 91, 60 So. 418. Appellant's brief violates rules 10 and 12. Brothers v. Brothers, 208 Ala. 258,94 So. 175; Ogburn-Griffin v. Orient Ins. Co., 188 Ala. 218,66 So. 434. Where the bill of exceptions does not contain all of the evidence, the court cannot pass on its sufficiency on appeal. Cont. Gin Co. v. Milbrat, 10 Ala. App. 351, 65 So. 424; Warble v. Sulzberger, 185 Ala. 603, 64 So. 361; Faught v. Leith, 201 Ala. 452, 78 So. 830; Ala. Power Co. v. Alford,210 Ala. 98, 97 So. 224. It will be presumed that the evidence adduced warranted the rulings on charges asked and refused. So. Susp. Co. v. Van Borries, 91 Ala. 507, 8 So. 367; Wadsworth v. Williams, 101 Ala. 264, 13 So. 755; Bissell Motor Co. v. Johnson, 210 Ala. 38, 97 So. 49; Fuller v. Fair, 206 Ala. 654,91 So. 591. Where counsel in brief merely repeats the assignment of error, it is not such an insistence as the rule requires and such assignment will not be considered. Stover v. Hill, 208 Ala. 575, 94 So. 826; Ga. Cot. Co. v. Lee, 196 Ala. 599,72 So. 158; Repub. I. S. Co. v. Quinton, 194 Ala. 126,69 So. 604; West. Union v. Benson, 159 Ala. 254, 48 So. 712; West. Ry. v. Russell, 144 Ala. 142, 39 So. 311, 113 Am. St. Rep. 24; Hodge v. Rambo, 155 Ala. 175, 45 So. 678; L. N. R. Co. v. Morgan, 114 Ala. 449, 22 So. 20. This action is by appellee against the appellant, and on the trial the plaintiff prevailed. The case was presented, on the merits, under the complaint as amended, consisting of five counts, the first being one of the common counts for money due on account, and the others for breach of contract, and defendant's plea of the general issue. The defendant filed a number of special pleas to which demurrers were sustained.

The assignments of error, of which there are two hundred and seventy-four, are predicated on the rulings of the court on the demurrers to the complaint, the demurrers to the special pleas, the rejection and admission of evidence, exception to the oral charge, the giving and refusal of special charges, and the refusal of the defendant's motion for a new trial.

The appellee strenuously insists that these assignments of error should be treated as waived because of the violation of rules of practice 10 and 12 of this court, prescribing the form and manner of the preparation of briefs by appellants. We have given this insistence due consideration, and while the original brief filed by appellant does not strictly conform to the rule, it presents the controlling questions in the case so that they may be easily grasped, and was supplemented by oral argument and supplemental brief, with the statement of circumstances and difficulties confronting appellant's counsel in the preparation of the original brief. Courts are created to the end that justice may be administered, and their continued existence can be justified only to this end. While these rules of practice have for their purpose the orderly presentation of cases and to the expeditious disposal of public business, and should be respected and complied with by the bar, we must not lose sight of the fact that justice is best administered by disposing of controversies between litigants on their merits. We are satisfied that there has been no willful or intentional violation of the rules of practice, and are of the opinion that the circumstances justify a condonation of the technical violation of the rules, and for these reasons we are of opinion that appellee's contention should not be sustained.

Counts 2 and 3 of the complaint as amended aver, in substance, that the plaintiff on the 8th day of August, 1924, leased from the defendant "premises known as No. 218 NorthTwentieth street, in the city of Birmingham, Ala., for a period of time beginning on the 1st day of September, 1924, and extending through the last day of September, 1926," for a rental of $900 per month, payable monthly, the defendant holding the property described under lease from the owners, said lease from the owners being referred to in the lease between the plaintiff and defendant and made a part thereof, and providing that the plaintiff should assume and discharge all the terms of the lease between the defendant and the owners, except the payment of the stipulated rents which were to be paid by the defendant to the owner, and in turn the agreed rents between the plaintiff and defendant were to be paid to defendant. The only substantial difference in the averments of the counts is that in the second, fourth, and fifth counts it does not appear that plaintiff's lease covered the remainder of the term held by the defendant under its lease from the owner, or that said original lease did not cover other property not covered by plaintiff's lease; while the third count sets out both leases, in hæc verba, and by comparison of the two leases it appears that both leases related to property described as "218 North Twentieth street," and the lease between the plaintiff and the defendant covers what remained of the defendant's term.

The alleged breach in the second count is thus stated:

"And plaintiff further avers that they have complied with each and all the terms and provisions of said lease, have paid said rent promptly when due and on, to wit, the 1st day of September, 1924, entered into possession of all of saidpremises, that is the first, second, and third floors of No. 218 North Twentieth street, and all of the premises held by the defendant herein under its said lease, except the front portion of the second floor of said premises, which the defendant herein failed to put the plaintiff in possession of, the said defendant having heretofore leased and rented said premises to a tenant who was then and has been continually and is now in possession thereof, and who has paid rent to the defendant herein for the use of said premises as in said lease provided of, to wit, $85 per month."

The breach as alleged in the third count is that:

When plaintiffs "were put into possession of said building known as 218 North Twentieth street, that is all of the ground floor, all of the third floor, and the rear portion of the second floor, the said defendant failed and refused to put them into possession of the front portion of the second floor, that the east portion, which was at the time they took possession of the balance of said premises and still is in possession of the third person, who is occupying the same, including the stairway leading thereto, as a beauty parlor, under a lease from this defendant which does not expire until, to wit, the last day of September, 1926.

"And plaintiff further avers that the said tenant occupying the east portion of said second floor has been and is now paying rent to the said defendant for said portion of said premises at the rate of $85 per month, which defendant has received and kept and retained.

"And plaintiff further avers that they have made demand upon said defendant to put them in possession of all of said premises, including the stairway leading from the sidewalk on Twentieth street to the second floor and east portion of said second floor now occupied by the beauty parlor, and said defendant has failed and refused so to do," etc.

Construing the quoted averments, as to the breach of the contract in connection with the other averments describing the premises covered by the alleged lease, most strongly against the pleader, as must be done on demurrer, it does not appear with certainty to a common intent, as the rules of good pleading require, that the portion of the building in the possession of the defendant's other tenant was a part of the premises "known as No. 218 North Twentieth street," covered by the lease held by the plaintiff. Non constat the premises so occupied by defendant's other tenant may have been known by a number other than 218 North Twentieth street. "Facts essential to a cause of action, and of which courts do not take judicial notice, must be stated with that certainty that the court, on an admission of the facts stated, may say that a cause of action in favor of the party complaining exists, or, as it is expressed in the books, 'with certainty to a common intent.' " Miles v. City of Montgomery, 17 Ala. App. 15, 81 So. 351; Woodward Iron Co. v. Marbut, 183 Ala. 313, 62 So. 804; Southern Ry. Co. v. Hanby, 183 Ala. 255, 62 So. 871. This defect was pointed out by the twentieth, twenty-first, twenty-second and twenty-third grounds of demurrer, and the court erred in overruling the demurrers to these counts.

Count 4 adopts the averments of count 2 without other or more specific averments of a breach of the contract, and this count was subject to like objection.

Count 5 "adopts all of count 4 down to and including the following words, where they appear in said count together: 'Attached hereto and marked Exhibit A is the lease between the defendant herein and the owners of said property,' and adds thereto the following:

"And plaintiffs aver that they have complied with each and all of the terms and provisions of said lease, and have paid the rent promptly when and as it became due thereunder, and that the defendant has failed to put the plaintiffs into possession of the whole of said leased premises, viz., theeast end of the second floor of said building and the spaceoccupied by the stairway on the north side of said premises, although the plaintiffs have made demand upon the defendant to put them in possession of the whole of said premises," etc.

There is no such averment in count 4 or in count 2, adopted by count 4, as that "attached hereto and marked Exhibit A isthe lease between the defendant herein and the owners of saidproperty." Nor does count 2 or four aver that "the east end ofthe second floor of said building and the space occupied by thestairway on the north side of said premises" constitute a part of No. 218 North Twentieth street.

Therefore, leaving out of view the uncertainty arising from the attempted adoption of counts 2 and 4 as a part of this count, when the averments as to the breach of the contract are considered in connection with the antecedent averments of the counts adopted, it is subject to like objection as the other counts.

The points taken by the demurrers to the several counts of the complaint were not waived by the subsequent amendment of the complaint by merely striking out some elements of special damages claimed, and a failure to refile the demurrers. Southern Ry. Co. v. Hanby, 183 Ala. 255, 62 So. 871; B. R. L. P. Co. v. Fox, 174 Ala. 657, 56 So. 1013.

The third count of the complaint is not subject to the objection that it joins in one and the same count separate and distinct causes of action, one ex contractu and the other ex delicto, by averring and claiming as special damages that:

"As a result of the negligence of the defendant, its agents,or servants, at the time they moved from said premises andimmediately before the plaintiff took possession of same, saidplumbing was wrecked, damaged, and injured, and plaintiffsherein were compelled to expend the sum of $760.84 to put saidplumbing in repair; that as a result of the negligence andwanton conduct of the defendant at the time it was removingfrom said premises, and in allowing the plumbing, during saidtime, to leak through the plastering in said premises theplastering was injured and damaged to the extent of $274.00,which said sum was reasonable cost of repairing same."

When these averments are taken in connection with the further averment "and plaintiffs aver that each and all of said several items of damages hereinbefore mentioned were proximately caused by and due to the defendant failing or refusing to give possession of said premises covered by said lease as hereinbefore set out, and a failure to comply with the terms under the lease under which it had said premises, and made a part of the lease to the plaintiff," it is clear that those italicized averments are a mere specification of special damages alleged to have resulted from a breach of the contract and were not intended as the statement of a separate and distinct cause of action.

The appellant insists that the contract as pleaded in the several counts of the complaint, and especially the third count, was a mere assignment of the original lease by the defendant to the plaintiff, and not a subletting creating the relation of landlord and tenant between the parties to the contract of August 8, 1924. If this contention is sustained, the plaintiff, under such assignment, took merely the rights of the defendant under the original lease, existing at the time of the assignment, incumbered by the lease held by the defendant's subtenant, with the right to the rents accruing thereunder, and assumed all of the obligations of the lessee to the landlord. In such case, the contention necessarily goes further than a mere question of the measure of damages. The failure of the defendant to oust the subtenant in possession and put the assignee in possession would not constitute a breach of the contract. Johnson v. Moxley, 216 Ala. 466, 113 So. 656; Terrell v. Nelson et al., 177 Ala. 596, 58 So. 989.

Rules of good pleading do not require that in pleading contracts that they be set out in extenso, but permits that they be pleaded according to their legal effect. Doullut Williams v. Hoffman, 204 Ala. 33, 86 So. 73; Davis v. Campbell, 3 Stew. 319; Pharr Beck v. Bachelor, 3 Ala. 237. In counts 2, 4, and 5 the contract is declared on as a lease, without setting out the contract, and on demurrer it must be so treated. In count 3 the contract — the two writings constitute the contract — is set out in hæc verba, and as before stated, it appears that the defendant parted with its whole term or interest. The question, therefore, as to whether the transaction was an assignment or a subletting, under the doctrine approved by this court in Johnson v. Moxley, supra, turns upon the question of the intention of the parties. We quote here the approved doctrine:

" 'Where a lessee of land leases the same land to a third party, the question has often arisen whether the second lease is in legal effect an assignment of the original lease, or a mere sublease. The question has frequently, and probably most generally, arisen between the lessee and his transferee, and much confusion will be avoided by observing the distinction between those cases and cases where the question has been between the transferee and the original landlord. In the latter class of cases, the rule is well settled that, if the lessee parts with his whole term or interest as lessee, or makes a lease for a period exceeding his whole term, it will, as to the landlord, amount to all assignment of the lease, and the essence of the instrument as an assignment, so far as the original lessor is concerned, will not be destroyed by its reserving a new rent to the assignor with a power of re-entering for nonpayment, nor by its assuming, by the use of the word "demise" or otherwise, the character of a sublease; and the assignee, so long as he continues to hold the estate, is liable directly to the original lessor on all covenants in the original lease which run with the land, including the covenant to pay rent. * * * But as between the original lessee and his lessee or transferee, even though the original lessee demises his whole term, if the parties intend a lease, the relation of landlord and tenant, as to all but strictly reversionary rights, will arise between them. Mausert v. Feigenspan [68 N.J. Eq. 671, 63 A. 610] 64 A. 801. The effect, therefore, of a demise by a lessee for a period equal to or exceeding his whole term is to divest him of any reversionary right and render his lessee liable, as assignee, to the original lessor, but at the same time the relation of landlord and tenant is created between the parties to the second demise, if they so intended.' Stewart v. Long Island R. Co., 102 N.Y. 601, 8 N.E. 200, 55 Am. Rep. 844." (Italics supplied.)

On the question as now presented, if the intention of the parties is manifest upon the face of the contract, as pleaded, it must be accepted as the sole expositor thereof, but if the pleader has left the question one of doubt, the doubt will be resolved against him.

We find in the writing of August 8, 1924, the following:

"* * * The lessee herein [plaintiffs] shall in all respects occupy the same position with reference to said property, as the lessee, to wit, the Nunnally Company, in said original lease of May 20, 1920, and the lessor [defendant] obligates itself to perform all the duties and do all the things to be done under said lease contract of May 20, 1920, by the lessor therein named, and the lessee herein obligates itself to do and perform all of the covenants required of the lessee; namely, the Nunnally Company, in said original lease of May 20, 1920, except that the lessee herein named shall pay to the lessor herein named the annual rental of $10,800, divided into equal monthly installments of $900, payable in advance on the first of each month, as hereinbefore particularly set out; the lessor herein agreeing to pay the rental required of it in said lease contract of May 20, 1920, promptly as therein required to be paid, and in all respects to protect the lessee herein against any default that would terminate or suspend such original lease contract where such default is the act of the lessor herein and not caused by the failure of the lessee herein to comply with the covenants assumed by it."

From these provisions it is manifest that the parties intended a subletting of the property, and not an assignment of the original lease, and their rights and liabilities must be accordingly adjudged.

If it was defendant's purpose to assert through its fifth plea that the premises numbered "218 1/2 North Twentieth street" were separate and distinct from the premises known as "218 North Twentieth street," and not covered by the lease under which the plaintiff claims, this, of course, would be a complete defense, and on another trial, if the pleadings are recast to conform to our views, evidence establishing this defense will be admissible under the general issue. The plea as it now appears in the record is equivocal and uncertain as to whether it was the purpose of the pleader to assert the defense above outlined, or to merely assert that it undertook to deliver the possession of the premises covered by the lease, and failed in its purpose because the part now known as "218 1/2 North Twentieth street" was in the possession of a third person.

Assuming that plaintiffs' lease covered the premises occupied as a beauty parlor, the mere fact that the plaintiffs or their agents had knowledge that defendant had leased part of the premises to another, when the lease to the plaintiffs was made and accepted, would not excuse the breach of the contract, nor would it mitigate the damages arising therefrom, in the absence of an election on the part of plaintiffs to treat their lease as an assignment of the rents accruing under the prior sublease. Poposkey v. Munkwitz, 68 Wis. 322, 32 N.W. 35, 60 Am.Rep. 858; Townsend v. Nickerson, 117 Mass. 501.

The special pleas asserting that the transaction involved an assignment of the original lease, and not a subletting, is merely a denial of the averments of the special counts of the complaint, and in effect the general issue. We are of opinion, therefore, that the rulings of the court on the demurrers to the special pleas were free from error.

The statute does not require that a motion to transfer a case from the law docket to the equity docket should be filed before issue joined. Code of 1923, § 6490. In fact, section 6488 provides that:

"Whenever it shall satisfactorily appear to a judge who is presiding in the law side of the court that a cause set for hearing before him presents an equitable question, the decision of which should dispose of the cause and which cannot be disposed of in the law side of the court, the judge may upon his own motion, enter a judgment or order transferring such cause from the law side of the court to the equity side of the court," etc.

Taking these remedial statutes in pari materia and giving to them a liberal interpretation, it is clear that defendant's failure to make the motion to transfer the cause to the equity docket before pleading to the merits was not a waiver of its right.

While the motion shows with sufficient certainty that the writings evidencing the contract between the parties do not express the true contract, it fails to aver that this resulted from the mutual mistake of the parties, the mistake of the scrivener, or fraud on the part of the plaintiff. The averment of one or the other of these alternative facts was essential to a statement of the substance of the equitable right. Pieme v. Arata, 202 Ala. 427, 80 So. 811; Stone v. Hale, 17 Ala. 557, 52 Am. Dec. 185, 23 Rawle C. L. 326-330, §§ 19-22.

Appellant insists that the affirmative charge in its favor was erroneously refused, because of the provision in the contract excusing the lessor, appellant here, from liability "for the failure to deliver possession of said premises,provided the lessor shall exercise due diligence," and the absence of evidence showing that such diligence was not exercised. There are two reasons why this contention cannot be sustained. The first is that the record shows on its face that some of the evidence offered on the trial is omitted from the record; the other is that this provision of the contract excusing liability except for failure to use due diligence to avoid a breach was not specially pleaded and is without influence on this appeal. George v. Roberts, 186 Ala. 521, 65 So. 345; Code 1923, § 9470.

The rule for the admeasurement of damages for the breach of contract, in general, is one of indemnity giving damages for the loss sustained, so that, as nearly as is practicable, the injured party will be in the same condition he would have occupied if the contract had not been breached. Snodgrass, King's Adm'r, v. Reynolds, 79 Ala. 458, 58 Am. Rep. 601.

Another rule, having its foundation in natural justice, is that the party injured by a breach of contract should use reasonable diligence and make reasonable efforts to reduce to a minimum the damages resulting from such breach, being allowed to recover necessary expenses incurred by him in so doing. Poposkey v. Munkwitz, 68 Wis. 322, 32 N.W. 35, 60 Am. Rep. 858; Bradley v. Denton, 3 Wis. 557; 1 Suth. on Damages, 148; 16 Rawle C. L. 559, § 29.

The statement of the general rule as to the measure of damages, for breach of contract, in the leading case of Hadley v. Baxendale, 9 Exch. 341, 26 Eng. L. Eq. 398, is as good as can be found in the book, that:

" 'Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally and in the great multitude of cases not affected by any special circumstances from such a breach of contract. For, had the special circumstances been known, the parties might have specially provided for the breach of contract by special terms as to the damages in that case, and of this advantage it would be very unjust to deprive them.' "

If, as plaintiff contends, the premises occupied by Mrs. Spangler are covered by the plaintiff's lease, the measure for the recovery of general, as distinguished from special, damages for failing to deliver possession of that part of the premises would be the difference between the reasonable rental value of the part of the premises delivered, and of which plaintiff took possession, in its improved condition after necessary changes in efforts at minimization and the reasonable rental value of the premises covered by the lease as they stood at the time of the breach. Townsend v. Nickerson Wharf Co., 117 Mass. 501; Snodgrass v. Reynolds, 79 Ala. 452, 58 Am. Rep. 601; Prestwood v. Carlton, 162 Ala. 327, 50 So. 254; Tyson v. Chestnut,118 Ala. 387, 24 So. 73; Paris v. Johnson, 155 Ala. 403,46 So. 642; Moses v. Autuono, 56 Fla. 499, 47 So. 925, 20 L.R.A. (N.S.) 350; Poposkey v. Munkwitz, 68 Wis. 332, 32 N.W. 35, 60 Am.Rep. 858; 16 Rawle C. L. 727, § 218.

If the expenditures for linoleum, wall paper, beaver board partition, carpenter work, and painting were made necessary by the breach of the contract, were reasonable in amount, made in good faith to minimize the damages by putting that part of the premises delivered to the plaintiff in condition so that it could be occupied without the other part, these would constitute proper elements of special damages and, being specially claimed, were recoverable.

The law does not allow the injured party to take advantage of the situation resulting from a breach of the contract to multiply and increase the damages resulting from such breach. Therefore the expenditures incident to the change of the front of the building were not allowable, and the court erred in receiving evidence relating to such expenditures, and in refusing special charges 29 and 30, requested by the defendant.

During the cross-examination of one of the plaintiffs (R. H. Bromberg) defendant's counsel sought by appropriate questions to elicit testimony going to show that the part of the premises occupied by Mrs. Spangler was in her possession at the time the lease was entered into, and that plaintiffs had knowledge of this fact, and the extent of her rights therein. The plaintiff objected to the defendant cross-examining the witness on this subject because plaintiffs' examination in chief had not touched on that subject, and insisted that, if defendant examined the witness, it would have to adopt him as its own witness. The court sustained the objection and ruled that the cross-examination must stop, unless the defendant agreed to make the witness its own. This was error to reverse, if the testimony was relevant and material. Carter v. State, 191 Ala. 3,67 So. 981; Johnson v. Armstrong, 97 Ala. 731, 735,12 So. 72; Huntsville Belt Line Monte Sano Ry. Co. v. Corpening Co., 97 Ala. 681, 12 So. 295.

As we have heretofore stated, the lease described the property in general terms, being described in the lease as "premises designated as No. 218 North Twentieth street, in the city of Birmingham." The evidence shows without dispute that the stairway entrance to the beauty parlor, and the parlor itself, at the time of the transaction between plaintiff and defendant resulting in the execution of the lease, the foundation of this suit, were known as "No. 218 1/2 North Twentieth street." Parties speak in their contract from the fountain of their mutual knowledge, and if courts and juries would properly interpret their words, they must be put, as near as may be, in a position to know just what the parties mutually knew, with neither addition nor abatement. McGhee v. Alexander et al., 104 Ala. 116, 16 So. 148. This evidence was material as shedding light on the sense in which the parties used the term "premises designated as No. 218 North Twentieth street," and whether or not it covered the premises known and designated as "218 1/2 North Twentieth street."

Other questions are argued, but we deem what we have said a sufficient guide for another trial.

For the errors pointed out, let the judgment be reversed and the cause remanded.

Reversed and remanded.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.