Gilliland v. Hawkins

*100 SOMERVILLE, J. Both counts of the complaint show a breach of contract and some pecuniary damage resulting therefrom. This being true, the counts were not subject to demurrer because they claimed for improper items of damage, or set them out insufficiently. In such a case, as often declared, the appropriate remedy is by motion to strike the objectionable items from the complaint, or by objections to the evidence, or by instructions to the jury. Terrell v. Nelson, 177 Ala. 596, 58 So. 989; W. U. T. Co. v. Hughston, 191 Ala. 424, 67 So. 670. Count B, alleging that the entire contract declared on was oral, was demurred to on the ground that it appeared to be void under the statute of frauds. It appears, however, from the allegations of this count, that plaintiff paid for the timber, took possession of it, and cut and removed it from the land. That part of the contract within athe influence of the statute of frauds was therefore fully executed, and the statute does not apply. City Loan, etc., Co. v. Poole, 149 Ala. 164, 43 So. 13. And this action is not based on any breach of the contract to convey the trees, but on the purely collateral agreement to dress the lumber for the purchaser. The demurrers to the complaint were properly overruled. Plea A to count A is in effect no more than a plea of the general issue, and its elimination by demurrer was not prejudicial. Plea 1 to counts A and B sets up, in substance, that the contract for the sale of the timber was executed by a written conveyance thereof, which did not include the alleged agreement to plane the lumber. In legal effect it sets up the parol evidence rule as a bar to the action. It does not show, however, that the deed, as a matter of law, superseded and excluded the agreement to dress the lumber; and manifestly, under the general issue, the principle invoked was available by objection to the proof of such an agreement by parol evidence. Hence, even if erroneous, the sustention of the demurrer to this plea was not prejudicial. The most important question presented by the record is whether, having introduced in evidence the deed executed by defendants, conveying to him the timber pursuant to their previous parol agreement, and containing no reference whatever to any other consideration therefor than the payment of $1,600 — nothing about the vendor’s undertaking to plane the lumber sawed from thd timber — plaintiff? could nevertheless show such an agreement by the vendors, made by parol, anterior to the execution of the deed, and contemporaneously with the original agreement to sell and convey the timber. Defendants’ contention is that the deed expressed the entire contract between the parties, limiting the undertaking of the grantors to a conveyance of the timber for the consideration stated, and that parol evidence of any other agreement, as a part of the consideration for the vendee’s purchase, is forbidden by the parol evidence rule. It will be observed that in the complaint it is alleged that defendants’ agreement to dress the lumber at $2.50 per M feet was part of the consideration for plaintiff’s purchase of the , timber for $1,600. But the testimony shows merely that plaintiff accepted defendants’ offer to sell him the timber for $1,600, and to dress it for $2.50 per M. On the face of it, this indicates two separate and distinct agreements upon separate and distinct considerations. No doubt the contract to dress the timber at that price (if made as alleged) was some inducement to plaintiff to buy the timber. But-“there is a clear distinction sometimes between the motive that, may induce to entering into a contract and the consideration of the contract. Nothing is consideration that is not regarded as such by both parties. It is the price voluntarily paid for a promisor’s undertaking. An expectation of results often leads to the formation of a contract, but neither the expectation nor the result is ‘the cause or meritorious occasion requiring a mutual recompense in fact or in law.’ ” Strong, L, in Philpot v. Gruninger, 14 Wall. 570, 577, 20 L. Ed. 743. The purpose of the deed was merely to convey the timber for the consideration agreed on and paid. There was no occasion for the recital in the deed of an independent undertaking which was itself based upon a separately specified consideration of its own. No advantage to the plaintiff is apparent in making the agreement to dress the lumber an integral part of the contract for the sale and conveyance of the timber. As an independent contract, it is just as effective for every purpose. Disregarding the technicalities involved, the case presents but four vital questions: (1) Did the parties make the contract to dress the timber, .as alleged? (2) Was the contract, as proved, a variance from the contract declared on? (3) If a variance, was the variance waived by defendants’ failure to object to the evidence, or to request an affirmative instruction on that ground? (4) If the variance was waived, did the evidence properly show the substantial damage covered by the verdict of the jury? (1) The question of contract, vel non, was a sharply disputed question for the jury. (2) The contract shown was technically a variance from the contract declared on. (3) If a material variance, it was unquestionably waived by the absence of proper objection *101 to the evidence, or of requested instructions calling the court’s attention thereto. (4) The evidence showed items of damage, within the range of jury finding, which substantially support the verdict. We find no error in the rulings on the evidence, and none of them could have affected the result in the smallest degree. That part of the oral charge excepted to by defendants correctly stated the rule applicable to the evidence. The two charges refused to defendants dealing with the credibility of plaintiff’s testimony in general, if shown to be willfully false in one material particular, were fully covered by the general oral charge, and their refusal was not prejudicial. We find no prejudicial error, and the judgment will -be affirmed. Affirmed. ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.