Birmingham & Belt Railway & Navigation Co. v. Jackson

ANDERSON, J.

The plaintiff, having sued for the breach of a contract between him and the defendant, could not recover upon proof only of a contract between defendant and Jones, though made for the plaintiff’s benefit, as there would be a fatal variance. . The plaintiff testified, however, that he had an independent contract with the defendant, • whereby the. general manager, Dewberry, after being informed of the contract he had with Jones, agreed to adopt and carry- out same with the plaintiff.. This constituted an independent contract between the plaintiff and defendant, -based upon the terms of the original one between plaintiff and Jones, and the undisputed evidence showed the existence of -same. The' plaintiff being uncontradicted in any manner, the trial court was authorized to render a judgment-'in 'his-favor upon his evidence alone. The evidence of Jones was merely corroborative of the'plaintiff’s evidence,- and, if there was any error in ruling upon the evidence of Jones,-it was error without injury, for, with all' of the Jones -evidence eliminated,' the court could not have found any other judgment than it did, upon the remaining evidence, and none of the objections complained of sought to bring from Jones any contradictions of the plaintiff, but related to facts corroborative or cumulative of his testimony.

The judgment of the law and equity court is affirmed.

Affirmed.

Dowdell, G. J., and McClellan and Sayre, JJ., concur.