
    Moses et al. v. Beverly et al.
    
    
      Action of Assumpnil.
    
    1. Action to recover commissions for negotiating sale; siofficiency of complaint. — In a suit by real estate agents to recover commissions for ,tbe negotiation of a sale of turpentine rights in certain lands, counts of the complaint which aver that the plaintiffs ac+ed in the transaction by the employment of the vendor for the sale of turpentine rights in a certain designated number of acres of land, and that the consideration promised by the defendants was a net price per acre to be paid to the vendors and certain designated commissions to be paid to the plaintiffs, and then avers further that the vendors conveyed the turpentine rights in accordance with an agreement between the plaintiffs and the defendants and that the defendants had failed to pay the plaintiffs the commissions agreed on, such counts allege with definiteness a contract between the plaintiffs and the defendants and the performanee of wliat was to be done to entitle tbe plaintiffs to its benefits and a breach on the part of the defendants, and are not subject to demurrer for indefiniteness and uncertainty of averment.
    2. Same; same. — In such a case, a count of the complaint which avers that the defendants agreed to pay to plaintiffs a certain designated sum in consideration of the services performed by plaintiffs in -bringing about said sale, and agreed ’ to pay said sum on the execution of a satisfactory conveyance by the vendors of the said turpentine rights to defendants, and which then avers the execution of a conveyance by the vendors as agreed upon between the plaintiffs and the defendants, and a failure on the part of the defendants to pay the plaintiffs the sum agreed upon, avers with definiteness a contract between the plaintiffs and the defendants and the performance by the vendors'of what was to be done to entitle the plaintiffs to its benefit and a breach of said contract on the part of the defendants, and such count is not subject to demurrer for indefiniteness and uncertainty of averment.
    3. Action upon special contract; what necessary to entitle plaintiff to recover; variance fatal. — In order for the plaintiff to recover in an action upon a special contract, he must prove the contract substantially as averred; and a variance in any material matter of description is fatal to the right of recovery.
    Appeal from the Circuit- Court of Mobile,.
    Tried before the Hon. William S. Anderson.
    This action was brought by the appellees, Benton IT. Beverly and Henry L. Gaines, doing business under the firm name of Beverly & Gaines, against the appellants, A. M. Moses and Levi Anderson, doing business under the firm name of A. M. Moses & Company.
    The complaint as amended contained six counts. In the first count the complaint sought to recover $6,250 on an account, stated between the plaintiffs and the defendants on October 14, 1899. In the second count the plaintiffs sought to recover the same amount for work and labor done by the plaintiffs for the defendants on October 14, 1899, at their request. The third count was in words and figures as follows: “Third. The plaintiffs claim of the 'defendants the further sum of six thousand two hundred and fifty dollars ($6,250) for that whereas, heretofore, to-wit, on the 14th day of October, 1899, the plaintiff's who were doing business as brokers in the city of Mobile, were employed by 'O. W. Zimmerman and O. W. Zimmerman & Oo. to negotiate the sale or lease of the right to use the standing pine timber on a large body of land, to-wit, fifty thousand (50,000) acres, situated in Clarke county, Alabama, said standing pine timber to be used for turpentine purposes; it being agreed and understood between said plaintiffs and said O. W. Zimmerman and C. W. Zimmerman & Co: that should the sale or lease of the right to use said standing pine timber for the purpose aforesaid be negotiated by plaintiffs, ¡such sale or lease should be upon such terms as would yield to said C. W. Zimmerman and C. W. Zimmerman & Co. a net sum of one and 25-100 dollars ($1.25) per acre; and. that plaintiffs should stipulate in said' contract of lease or purchase that the purchaser or lessee thereof should pay to the plaintiffs the commission Or commis- ■ sions charged by plaintiffs for conducting said negoti i tion; and plaintiffs allege that in pursuance 'of the terms of said agreement with said C. W. Zimmerman, and C. IV. Zimmerman & Co. they agreed and contracted with said defendants for the purchase or lease of said timber for the purpose aforesaid, comprising a,bout fifty thousand (50,000) acres; and that in consideration of said agreement and contract said defendants promised and agreed to pay to plaintiffs the sum of six thousand two hundred and fifty dollars ($6,250) aforesaid; and plaintiffs further allege that, said C. W. Zimmerman and O. W. Zimmerman & Co. in ratification and confirmation of the agreement and, contract previously made by plaintiffs with defendants executed and delivered to defendants satisfactory contracts and agreements and conveyances of the right to use said timbea* for the purpose aforesaid and in accordance with the terms of the agreement previously made by plaintiffs with defendants; wherefore, said defendants became and are liable to pay the plaintiffs the aforesaid sum of six thousand, two hundred and fifty dollars ($6,250). All of which said sums of money avith interest thereon are still due and unpaid.”
    The fourth and fifth counts contained substantially the same averments as the third count, except, that it shows that a part of the timber was to be used one and two years and the remainder three years, and that as to the timber which Avas to be used one and. two years the price to be paid to Zimmerman and Zimmerman & Co. was 50 cents and one dollars per acre, respectively, and that the commission which the plaintiffs Avere to be paid and Avhieh the defendants agreed to pay to them was 12 1-2 cents per acre.
    The sixth count Avas in Avords and figures as follows: “6th. Plaintiffs claim of the defendants the further sum of six thousand and two hundred and fifty ($6,250) dollars, for that whereas heretofore, to-wit, on the 14th day of October, 1899, plaintiffs Avho Avere real estate and timber brokers, doing business in the city of Mobile, engaged Avith C. W. Zimmerman and G. W. Zimmerman & Co. to negotiate the sale of the right to, Avorlc for turpentine, the timber owned or controlled by said Zimmerman and Zimmerman & Co. upon lands in Clarke county in the State of 'Alabama, within the following described territory, to-Avit: [Here folloAVS description of land.] It being understood and agreed between plaintiffs and said Zimmerman and Zimmerman & Co. that plaintiffs should stipulate in any agreement to sell said rights, to use said timber, owned or controlled or to be acquired in the aforesaid territory, that the purchaser thereof should pay the commission or compensation charged by plaintiffs for conducting said negotiations and for bringing about said sale of said rights to work said timber for turpentine purposes, and plaintiffs alleged that in pursuance of said agreement they contracted with said defendants for the sale to defendants by said Zimmerman and Zimmerman & Co. of the right to use said timber as aforesaid; and defendants agreed and obligated themsehms to pay.to plaintiffs the sum of six thousand two hundred and fifty ($6,250) dollars in consideration of the services and labor done and performed by plaintiffs in bringing about, said sale and agreed to pay said amount upon the execution of a satisfactory conveyance by said Zimmerman and Zimmerman, & Co. of said rights aforesaid to defendants. And plaintiffs further allege that said Zimmerman and Zimmerman. & Co. in ratification and confirmation of tlie; acts of plaintiffs and at the instance and request of plaintiffs, did, on the 14th day of October, 1S99, execute and deliver to defendants a satisfactory conveyance of the right to work said timber for the purposes aforesaid, then owned or controlled in said territory by said Zimmerman and Zimmerman & Co.; and also an obligation to' sell to said defendants all of the rights to -work the timber for turpentine purposes subsequently to be acquired in the aforesaid territory, wliieh said conveyance and contract was accepted by said defendants, wherefore defendants became and are liable to pay to plaintiffs the aforesaid sum of six thousand two hundred and fifty ($6,250) dollars, with interest thereon, which said sum with interest thereon is due. and unpaid.”
    To the third, fourth, fifth and sixth counts the defendants demurred upon the following grounds:
    “1. Each of the said counts fails) to show that O. W. Zimmerman and O. W. Zimmerman & Oo. had any right to sell or lease the standing pine timber mentioned in said counts for any purpose: 2. Each of the said counts fails to aver or show that defendants acquired any right or property under the contract alleged therein. 3. Each of the said counts fails to show that there ivas any consideration for the promise to pay therein alleged to have been made by the defendants. 4. Each of said counts fails to show that a sale Avas actually made to the said defend aids by the said C. W. Zimmerman and O. W. Zimmerman & Co: and fails to a,ver the passing of any title or right to the said defendants pursuant, to the contract alleged in said count to have been made between the plaintiffs and the defendants. 5. Each off the said counts fails to show Avi'th sufficient certainty the description of the lands upon AAiiich it is averred that defendants bought the right to work the timber for turpentine. 6. Each of the said countsi fails to aver with sufficient certainty the number of acres embraced in the contract alleged to have been made by plaintiffs Avith defendants, and the number of acres embraced in the contract and conveyance, made by O. W. Zimmerman and O. W. Zimmerman & Oo. with find to defendants.”
    These demurrers Avere. overruled. The defendants then pleaded the general issue and several special pleas. The demurrers to the special pleasi were sustained.
    Under the opinion on the present appeal it is. unnecessary to set out these pleas and the demurrers. The facts of the case are sufficiently stated in the opinion.
    There were verdict and judgment for the plaintiffs. The defendants appeal, and assign as error the several rulings of the trial court to which exceptions were reserved.
    Stevens & Lyons, for appellants.
    The several counts of the complaint were indefinite and uncertain as to the existence of the contract between the plaintiffs and the defendant, and for this reason were subject to the. demurrers interposed. — 1 Chitty’s Pleading, 255; Chapman, Governor, v. Weaver, 19 Ala. 626; Steiner v. Parsons, 103 Ala. 215; 4 Ency. PI. & Pr., 619, § B; H. A. & P>. R. R. Co. v. Dusenberry, 94 Ala. 413; \Hardy v. Br. Ban/c, 15 Ala. 722; Rogers Admr. v.. Jones, 51 Ala. 353; Wharton v. Ha/nnon, 1.01 Ala. 554.
    The defendants were entitled to the general affirmative charge. The contract sought to be set out in the several counts of the complaint was not proved. There was material variance between the allegations of the complaint and the proof, and this defeated the plaintiffs’ right of recovery. — Lee v. Wimberly, 102 Ala. 539; Webb v. Crawford, 77 Ala. 440; Criminen v. Campbell, 82 Ala. 566; S. & W. Ala. R. R. Co. v. Wilson, 78 Ala. 587; Harold v. Jones, 97 Ala. 637; if. & E. R. R. Co. v. Culver, 75 Ala. 587; Dexter v. Ohlander, 89 Ala. 262; A. G. S. R. R. Co. v. Mr. Vernon Co., 84 Ala. 173; A. G. S. R. R. Co. v. Thomas & Sons, 83 Ala. 343.
    McIntosh & Rich, contra.
    
    -The contract executed between the appellants and appellees embodied substantially all that was agreed, upon between appellants and appellees. If there was any substantial .difference between the contract delivered to appellants by Zimmerman and Zimmerman & Co. and that agreed upon between appellants and appellees, all objection on this account was waived by appellants Avhen they accepted the contract as tendered, without notice to appellees of their purpose to rescind. — 'Clark on Contracts, 675; Hennessey v. Bacon, 137 C. S. 84; Behrman v. Newton, 103 Ala. 525; Cop-la y 1. Co. v. Pope, 15 N. E. liep. 335; Casey v. Holmes, 10 Ala. 776; Aiken v. Bloodgood, 12 Ala. 221.
   tóHÁllPE, J.

In the complaint there are six counts, the first being on an account stated, the second, for work and labor done, and the four last! each declare specially as for the breach of a contract to pay plaintiffs money representing commissions accruing to them from the negotiation by them of a sale by C. W. Zimmerman and C. W. Zimmerman & Co. to defendants of rights to take turpentine from pine 'trees standing on lands situated in Clarke county. According to the averments of the third, fourth and fifth counts plaintiffs acted in the transaction by the employment of and in behalf of the vendors, C. W. Zimmerman and C. W. Zimmerman & Co.; and the, turpentine rights sold extended to the trees comprised in about 50,000 acres of land, and the consideration promised by the defendants was a net price per acre to be paid to the vendors and commissions to be paid to the plaintiffs, which commissions were according to the third count $6,250., and according to the fourth and fifth counts, 12 1-2 cents per acre. Each of these three counts avers that the vendors conveyed the turpentine' rights in accordance with the agreement between plaintiffs and defendants. The sixth count declares on a contract in terms differing in several respects from those described in the other three special counts, and whereby it is averred among other things that “defendants agreed and obligated themselves to pay to plaintiffs the sum of six thousand two hundred and fifty dollars ($6,250) in consideration of the services and labor performed by plaintiffs in bringing about said sale, and' agreed to pay said amount on the execution of a satisfactory conveyance by said Zimmerman and Zimmerman & Co. of the rights aforesaid to defendants.” These special counts each allege with definiteness a contract between plaintiffs and defendants, and* a performance of Avhat, was to be done to entitle the former to its benefits and a breach of the contracts on the paid of defendants. 'They were not subject to the demurrers.

But we are of opinion that neither count of the complaint was sustained by any tendency of tire evidence considered as a whole; and that, therefore, the trial court erred not only in giving the general affirmative charge for the plaintiffs, but in refusing the opposite charge requestéd by defendants. There is no evidence from which it could he inferred that plaintiffs have acted for or under the employment of defendants. All the evidence on the subject shows, they acted for C. W. Zimmerman and C. W. Zimmerman & Co. in making the sale and defendants’ promise was only to pay the price of the lands, though it might be found from the evidence that the price was so fixed as to include plaintiffs’ commissions and it may harm been understood that payment of so much of the price as would he sufficient to cover commission should be made, -directly to plaintiffs. Hence, the failure of the evidence to support the second and sixth counts both of which go- upon the theory that plaintiffs’ demand is for a sum due in consideration of sendees rendered defendants. The third, fourth and fifth counts, respectively, fail of support for the reason that the evidence, including the deed from C. TV. Zimmerman and C. W. Zimmerman-& Co. to -defendants in pursuance of their purchase, shows that what Avas in fact sold the defendants,' Avas not as alleged, thei right to work for turpentine the timber on lands comprising about 50,000 acres, but Avas merely all rights of that character Avhich C. TV. Zimmerman and -C. TV. Zimmerman & Co. or either of them had in the timber owned or controlled by them or either of them in lands situated Avithin a certain described territory said in the. conveyance to contain about 50.000 acres, less 3,000 acres reserved, together Avith such turpentine rights as might he acquired by the vendors within that .territory within a -fixed period; and it was further shown Avithowt 'dispute that 'the rights Avhich AArere in fact so owned, controlled and sold, including all subsequent acquisitions, did not extend to lands in excess of 35,000 acres. A general rule -applying to actions on special contracts generally and applicable here, is that to entitle the plaintiff to recover the contract must be proved substantially as alleged. “A variance in any material matter of description- is fatal to the right of recovery.” — Montgomery, etc. R. Co. v. Culver, 75 Ala. 587; A. G. S. R. R. Co. v. Mt. Vernon Co., 84 Ala. 173.

The evidence is not such as could afford a conclusion or inference that there was any agreement, express or implied, on the, part of the defendants to pay plaintiffs a definite sum on account of the sale which was actually negotiated and for that reason if for no other noi right to recover as upon the first count was shown.

The case as now presented does not seem to require the assignments of errors to- he more specifically passed on. The judgment, will be reversed and the cause remanded.

B overset! and remanded.  