139 Ala. 535 | Ala. | 1903
In each of the seven counts of the complaint as first filed, the cause of action was declared on as one which had accrued to Walter Moore, and which had subsequent to its accrual become the property of the plaintiff. The eighth count filed as an amendment to the complaint declared as upon an account stated immediately between the plaintiff and defendant inde
The judgment overruling the demurrer to plea 2 was erroneous. A contract “with reference to the sale of lands” might be constituted of an employment of one to sell land for another; and such a contract not being one for the sale of land, would not be offensive to the statute of frauds because not in writing.
' The other special pleas were unnecessary, and the rulings on demurrers thereto are inconsequential, This because the matter therein set up were subjects of proof under the general issue pleaded to each count of the complaint, and proof which would have sustained such special pleas would have been sufficient to sustain the plea of the general issue. This is true even as to the want of consideration pleaded to the declaration on an account stated. A promise, express or implied, is the basis of every cause of action enforceable in assumpsit, and every promise to amount to a cause of action must be supported by a valuable consideration. An account stated involves a promise, express or implied, to pay a real indebtedness agreed upon as due. The consideration which places such promise on the plane of a com tract is the agreement of one party, for the agreement of the other, that, a certain amount and that only is due on the matters embraced in the settlement, wherefrom the law raises a new obligation on the part of the one against whom the balance stands to pay that balance, In the absence of any original pecuniary obligation there can be nothing to settle or to merge into an accounting, and hence a promise to pay a claim not founded on $ucli obligation, though it purport to be made as upon an account stated, is not conclusive and may be shown to be without consideration. — Christian v. Niagara Fire Insurance Company, 101 Ala. 634; Rice v. Schloss, 90 Ala. 416.
Charges 22 and 23 each go upon the theory that a performance by Moore on his part of the contract was a prerequisite to his right to compensation under the terms thereof and to a recovery. These charges may not be above criticism, but considered in application to the evidence, they do not appear to have involved error since there was no proof from which the value of any services of Moore rendered outside of such special contract as may Lave existed, could have been found chargeable to defendant, and recovered for as upon a quantum meruit.
In charge 20 it is wrongly assumed that Moore had the right to effect a settlement with the defendant after the transfer of the claim to the plaintiff and notice thereof to the defendant. This charge should have been refused.
The questions that the witness Moore was allowed to answer against plaintiff’s objections were within the latitude properly allowable on cross-examination, and the questions permitted against objection to the witness H. W. Long were each pertinent to matters introduced in evidence by plaintiff. It is not apparent that error was committed in allowing any of those questions, or in the exclusion of the testimony of H. W. Long as who were the stockholders of the Alabama-Georgia Coal Company, and when the same was organized. This question addressed to defendant: “What did that have to do with any commission with Walter Moore?” was properly disallowed, since it called for a conclusion and not for a fact.
For the errors pointed out the judgment will be reversed and the cause remanded.
Reversed and remanded.