135 Ala. 490 | Ala. | 1902
This is an action for damages for an alleged breach of a contract.
The complaint avers that the defendant agreed to pay for the cutting of wood and the royalty on the same, and that the breach consisted in its failure to do so. The negotiations between the parties resulting in a final agreement between them is shown by several writings. A number of letters and the original draft of the contract embody the terms and stipulations finally agreed upon. These several writings must, therefore, .be looked to for the purpose of ascertaining what yvere the terms of the contract.
It is true that defendant agreed to advance to the plaintiff money to pay for the cutting of wood and the royalty on same. But its promise to advance the money to pay the royalty, if not for the cutting of the wood, was upon condition that a timber deed be made to it covering the right of possession and right of way. The obligation of defendant to pay being conditional and not absolute, the condition and its performance should have been averred in the complaint.—Griel v. Solomon, 82 Ala. 85. This not being done, there is clearly a variance between the contract counted upon and the one proven. Besides, the condition having been shown and no performance of it proven, no breach of the contract as alleged is shown.
The 'affirmative charge, if requested, could well have been given for the defendant. This being true, whatever of errors may have been committed in the giving or refusing of charges is without injury.—The Bienville Water Co. v. City of Mobile, 125 Ala. 178.
Affirmed.