21 Ala. 714 | Ala. | 1852
— The court charged the jury, that, admit* ting the contract to be as stated by the witness Keeten, still, the plaintiff was entitled to recover on the last count in the de* claration, which was a count on an account stated. This presents the main question in the case, which we will proceed to consider. That the plaintiff could not recover on the special counts on the written instrument, is clear; because, no man is allowed to recover on a declaration whose allegations are not supported by proof, and the proof in the cause shows that the contract between the parties was substantially variant from that set out in the special counts of the declaration, founded on the written instrument.
The next question is, could the plaintiff recover on the common count — the count on an account stated, according to the proof ? If the contract between the parties had been that set out in the written instrument, which was in form a conditional note, the plaintiff, by proving that, he had performed the condition on his part to be performed, viz: that a team of four oxeii or mules could keep the mill sawing at the rate of a thousand feet of lumber per day, would be allowed, on proving its execution, to give the note in evidence under the common count, and could have recovered under
In view of these facts, the writing in the hands of Eiland, upon which he instituted suit, never had the force of a contract good and complete in law. He had the right to retain it, as a written memorandum showing in some degree the nature of the contract between himself and Hopper, and useful for the purpose of adjusting and settling the real terms of the contract at some future time; but for nothing more. When he attempted to enforce it, as a complete and binding contract, contrary to his express agreement at the time he received it, by bringing suit and declaring on it as such, it became powerless in his hands for any such purpose. Such a use of it was an act of bad faith; and an attempt to put it to such a use could not be sanctioned by the court, in any way, without giving countenance to an act of bad faith; in other Words, to a fraud.y/Eor want of an absolute, unconditional delivery, this paper never had the character and qualities of a note, so as to make it evidence as such for any purpose.
Even conceding, then, that a note, or a conditional note
It will be seen from these views, that we conceive tbe court below to have erred in tbe charge given to tbe jury.
As tbe defendant in error will have to shape bis declaration entirely anew, so as to make it conform to tbe contract as it was proven to exist between tbe parties, before another trial is bad, we deem it unnecessary to decide on tbe errors assigned relating to tbe objections that were taken to tbe answers of tbe witness, about his purchasing sappy lumber from Deariag, and using it in the construction of a flat-boat.
. No objection was made in tbe. court below to tbe parol evidence going to vary tbe written instrument, and therefore tbe objection cannot be noticed here. Erom what bas been said, however, it may be readily inferred that, if tbe objection bad been made, we should have been disposed to consider it untenable, under tbe proof in tbe case.
Eor tbe error in tbe charge of tbe court, the judgment below is reversed, and tbe cause remanded.