Bush v. Moore

SAMFORD, J. The complaint was c>n the common counts for an account and for goods, wares, and merchandise sold and delivered, and was in the forms laid- down in the statute. The demurrers to these counts were properly overruled. . Nor was there a variance between the probata and allegata. The proof for plain *89 tiff showed a balance due on a contract for tbe delivery of certain cross-ties, with nothing left to be done under tbe contract but tbe payment of tbe balance due. Where this is tbe ease, tbe amount can be claimed under tbe common counts, and recovery had on proof of the contract, its performance by plaintiff, and a failure to pay by defendant. Merrill v. Worthington, 155 Ala. 281, 46 South. 477. The issues involved in this case made by the facts as proved did not embrace the market value or even the reasonable value of the ties claimed' to have been delivered on the contract. The one question on that point was. Were the ties delivered of the specifications as defined in the contract? If so, the price was fixed; if not tbe defendant would have been entitled to a verdict. So that, proof of the value of* the ties was properly excluded. The defendant sought to introduce in evidence what purported to be “some ends” claimed to have been sawed off the ends of some of the ties delivered on the contract. A sufficient ground upon which to sustain the court’s ruling excluding this testimony is the parts of the ties offered in evidence were not sufficiently identified, by tbe witness Gwin, in connection with whose testimony these “tie ends” were offered. Charge No. 1, requested in writing by defendant, was fully covered by the court in his oral charge to the jury. No bill of particulars appears in tbe record, and hence we must presume that the court properly refused the charge. There is no evidence in the record fixing the value of the timber in the ties at 20 cents per stick; the plaintiff testifying that the agreed price was 25 cents per tie and defendant that the aggregate value of the timber was $75 or $80. Charge 8, requested by the defendant, sought affirmative instructions as to the value of the timber, where there was a conflict in the testimony as to value. This in itself would justify tbe trial court in refusing the charge as requested. We have examined the record carefully. The questions were fairly presented to tbe jury, and by tbe jury decided. Tbe trial court did not err in overruling the motion for new trial. We find no error in the record, and tbe judgment is affirmed. Affirmed.