delivered the opinion of the court.
He stated the case as above reported, and continued:
1. Thе special pleas contained nothing of which the defendant could not have availed himself under his plea, of the gen *453 eral issue. If the court erred in sustaining the demurrer to any of the special pleas, it was an error without’ injury, and, therefore, not constituting a ground of reversal. Code of Alabama, 1886, § 2675; Kannady v. Lambert, 37 Alabama, 57, 59. .
. 2, It was not, error to allow the written agreement between the parties to be read in evidence without proof of its execution. The .Code of Alabama providеs that “every written 'instrument, the foundation of the suit; purporting to be signed by the defendant, his partner, agent, or attorney in fact, must, be received in evidence without рroof of the execution, unless' the, execution thereof is denied by plea, verified by affidavit.” § 2770'. There was no, such plea in this case. ,
3. By the terms of the agrеement between the. parties, the defendant was. to pay a certain amount to the plaintiff,'by a named day, for the machinery,,dial and lamps, providеd the city council,of Montgomery concluded “to adopt the Brush, electric light for the-future lighting of the streets” of that city, after the expiration of the cоntract which Poliak- - & Company then,had with the-city.- The main question in the case is, whether the contingency just stated happened prior to January 1, 1885; if so, the contract between the parties , became one of absolute sale, and bound the defendant to pay on that day the specified card rates for the property.
The defendant insists that the agreement, construed in the' light of the circumstances attending its execution, contemplated something more thаn the adoption by, the city council of the Brush electric light for the limited territory covered by the contract which Poliak & Co. then had/with the city; and that the pаrties made their agreement with reference to an enlargement, after the expiration of that contract, of the area in the city to be lighted with thе Brush electric light. "We do not assent to this construction. The agreement was made in view of the fact that the city was then using, under the contract with Poliak & Co., only twenty-three of the Brush electric lights. The machine, dial and lamps furnished by the defendant were used, and presumably were needed, in order that Poliak & Co. might perform that contract. He was to *454 pay only cеrtain rental therefor in case the city council concluded “not to contmue lighting the streets of Montgomery with the Brush electric light after the expiration of the prеsent contract with said Poliak & Go.” and if the council concluded otherwise, then the machine, dial and lamps were to be returned to the defendant, fully repaired and in good working order, by January 1, 1885. These provisions clearly show that the lighting; of the streets after November 1, 1884, with the Brush electric light, under an arrangement for that purpose with the city council, even to the limited extent provided for by the contract with Poliak & Co., was, within the meaning of the parties, such an adaption оf that light by the city as bound the plaintiff to purchase the machine, dial and lamps in question and pay therefor,, by January 1, 1885, the sum of $6180. It could not have been their intention to make the permanent adoption of the Brush electric light, for an indefinite period .for all the streets of the city, or for a larger territory than that stipulаted for in the contract with Poliak & Co., a condition precedent to the defendant’s obligation to buy the property at the aggregate price fixed. The communication of Poliak to the city council, under date of October 4, 1884, supports this conclusion. He distinctly says that if the then existing' contract was not rеnewed, he was under a duty by his agreement with the defendant to take down, pack and • deliver the machinery at Cleveland, Ohio; implying that if his contract was renewеd no such duty would rest upon him. And that the contingency happened upon which the defendant became bound to purchase the property outright at the рrice above named, appears from the fact that the contract of Poliak & Co. was'renewed. That renewal is shown by the action of the city council on the 3d of November, 1884. Its action in response to the written communication of Poliak, under date of October 4, and its monthly payments thereafter to him, operated as an effective renewal of his contract with the city, although such renewal was not evidenced by a written contract covering а fixed period of time. City Council of Montgomery v. Montgomery Water Works, 77 Alabama, 248, 254.
4. It is also contended that the plaintiff was not entitled tc
*455
recover, except upon averment or proof that it had transferred or offered to transfer to the defendant the shares of stock held by it and by the Brush Electric Company of • Cleveland, Ohio, in the Brush Electric Light and- Power Company of Montgomery. This cannot be, unless, as insisted,-his promise to pay, in the contingency named in the third article of the agreement of November 13, 1883, the suih of $6180, was in considеration of the plaintiff’s promise'to transfer, or have, transferred to him, the above shares. In support of this position' the case of
Bank of Columbia
v. Hagner,
But it is clear, as said in Philadelphia,
Wilmington & Baltimore Railroad Company
v.
Howard,
As the court below correctly interpreted the agreement between the parties, and аs the evidence showed that the contingency happened which entitled the plaintiff to recover the sum specified.in the agreement as the value of the property, the direction to' the jury to find for the plaintiff was right.
Goodlet
v.
Louisville & Nashville
Railroad,
■The judgment is affirmed.