
    E. H. Tomlinson, Plaintiff in Error, v. Peninsular Naval Stores Company, a Corporation, and Others, Defendants in Error.
    
    1. In a joint action ex contractu against several, and possible proof as against but one, there can be no recovery.
    2. Prior immaterial statements of a witness, may affect his credibility, but are not evidence to prove a fact.
    This case was decided by Division A.
    Writ of error to the Circuit Court for Duval County.
    
      The facts in the case are stated in the opinion of the court.
    
      Robert W. Davis and Richard P. Marks, for Plaintiff in Error;
    
      D. G. McMullen, for Defendants in Error.
   Cockrell, J.

This is an action for commissions by a real estate agent against the Naval Stores Company and A. P. Stuckey and D. R. Henderson jointly, the declaration consisting of a special count and the common count for work and labor done and performed, the plaintiff taking a nonsuit with a bill of exceptions.

There is no evidence as against Stuckey and Henderson, tending to show liability as to them and as the action proceeds upon a joint liability there could be no recovery in it. We need not therefore concern ourselves as to whether a case of some kind might be made out, if the proper action had been brought against the Naval Stores Company alone. Somers v. Florida Pebble Phosphate Co., 50 Fla., 275, 39 South. Rep., 61, and cases cited.

Much stress is laid upon alleged inconsistencies between the testimony of a witness for. the defendants and that given by him on the trial of another case. This is wholly immaterial; prior inconsistent statements may affect credibility, but they are not evidence to prove a fact, not otherwise shown.

Judgment affirmed.

Whitfield, C. J., and Shackleford, J., concur;

Taylor, Hocker and Parkhill, J. J., concur in the opinion.  