| Ala. | Jul 15, 1830
The errors assigned in this case arc first, that the Court erred in refusing to instruct the jury that Smith ought to be non-suited on all and each of the grounds set forth in the bill of exceptions; and secondly, for .giving the instructions lastly specified in said bill of exceptions; without entering into lengthy detail, it may be sufficient to notice, that the special agreement as set forth in the pleadings was variant, perhaps in some mate-ria! respects, from that proven, as would appear from the bill first presented to the judge for his signature. Bui the facts annexed before the bill of exceptions was made a part of the record, greatly qualify and control those previously stated, and must materially affect the legal aspect of the cause. They shew that Maddera had not only failed and refused, but put it out of his power, by his own act, to comply with the agreement, which was by parol, to convey the land, and that too after Smith had paid two thirds of the money he was'to give. Smith then had a right, by all authority, to abandon the contract and sue and recover as if such agreement had never been made. In legal contemplation it had no existence, and it was not even necessary to have noticed it, especially in the declaration. This in effect is the amount of the charge given by the Court to the jury, and in this they did not err. These principles also meet every other aspect of the case presented by the record and noticed in the argument, except perhaps so far as relates to the partnership, and it seems to me that they are nearly if not quite decisive even of that. It is contended an action at law will not lie to recover an unsettled balance due from one partner to another; and that as the parties were in partnership, and the suit was in relation to their partnership accounts, which had not been liquidated, the Court ought to have charged as in case of a non-suit. The principle is correctly stated, but we deny its application to the case before us; the plaintiff below did not seek to recover an unsettled balance on a partnership account, which, from the. peculiar powers of chancery, would have made that the proper forum; that jurisdiction having control over the books accounts, and conscience of the defendant. But he sued for the money which he had advanced upon an agree-
Judgment affirmed.