68 So. 794 | Ala. Ct. App. | 1915
This is tbe second appeal in this •case.—Long-Lewis Hardware Co. v. Ewing, 8 Ala. App. 657, 62 South. 341. Appellee (plaintiff below) recovered judgment for a sum of money alleged or claimed to be due as brokerage or for services rendered by bim in consummating an agreement of sale by appellant to •one Thompson of certain roofing material designated by tbe parties as “Johns-Manville 3-ply Standard Burlap
Plea No. 12, to which demurrer was sustained, and of which ruling appellant complains, denied the plaintiff’s right to recover for the reason, it is alleged, that, at the time of the alleged sale of the material, none such as that designated had been manufactured or was then in existence; wherefore, it is said, the contract or sale out of which the brokerage or commission arose had no legal existence.
Appellant’s chief insistence is that judgment should not have gone against it for the reason that the subject-matter of the contract — the roofing material stipulated in the agreement between the parties — never had any actual or potential existence. Appellant was the vendor, and the agreement of sale between it and Thompson, which appellee was instrumental in bringing about, was reduced to writing, and designated the material as “Johns-Manville 3-ply Standard Burlap Asbestos Roofing;” the consideration being $4.35 per square. The agreement between the parties relating to the brokerage or commission at first rested in parol, but was subsequently reduced to writing, and designated the material
■ The evidence tends to show that no roofing material of the specific brand or designation stipulated for between the parties and Thompson was being manufac
“Where no express or-implied provision as to the event of impossibility can be found in the terms or circumstances of the agreement, it is a general rule of construction, founded on absolute and unqualified terms Of the promise, that the promisor remains responsible for damages, notwithstanding supervening impossibilities. * * * It is no excuse for the nonperformance of a condition that it is impossible for the obligor to fulfill it, the condition being in its nature possible.” — Beach
Corrected and affirmed.
Note.- — -This opinion was prepared by Judge Crum, and was adopted by the court after his retirement.