Ivy Coal & Coke Co. v. Long

SHARPE, J. — In each of the seven counts of the complaint as first filed, the cause of action was declared on as one which had accrued to Walter Moore, and which had subsequent to its accrual become the property of the plaintiff. The eighth count filed as an amendment to the complaint declared as upon an account stated immediately between the plaintiff and defendant inde [540] pendent of any transaction with Moore. The canse of action so introduced by the eighth count was apparently different and distinct from any originally described in the complaint, and, therefore, the striking out of that count was not erroneous. — Semple v. Glenn, 91 Ala. 245; Mahan v. Smitherman, 71 Ala. 563. The judgment overruling the demurrer to plea 2 was erroneous. A contract “with reference to the sale of lands” might be constituted of an employment of one to sell land for another; and such a contract not being one for the sale of land, would not be offensive to the statute of frauds because not in writing. ' The other special pleas were unnecessary, and the rulings on demurrers thereto are inconsequential, This because the matter therein set up were subjects of proof under the general issue pleaded to each count of the complaint, and proof which would have sustained such special pleas would have been sufficient to sustain the plea of the general issue. This is true even as to the want of consideration pleaded to the declaration on an account stated. A promise, express or implied, is the basis of every cause of action enforceable in assumpsit, and every promise to amount to a cause of action must be supported by a valuable consideration. An account stated involves a promise, express or implied, to pay a real indebtedness agreed upon as due. The consideration which places such promise on the plane of a com tract is the agreement of one party, for the agreement of the other, that, a certain amount and that only is due on the matters embraced in the settlement, wherefrom the law raises a new obligation on the part of the one against whom the balance stands to pay that balance, In the absence of any original pecuniary obligation there can be nothing to settle or to merge into an accounting, and hence a promise to pay a claim not founded on $ucli obligation, though it purport to be made as upon an account stated, is not conclusive and may be shown to be without consideration. — Christian v. Niagara Fire Insurance Company, 101 Ala. 634; Rice v. Schloss, 90 Ala. 416. [541] As appears from the bill of exceptions the suit grows out of an agreement between Moore and the defendant looking to a sale of coal land belonging to the latter. Tlie terms of that agreement rest in parol and are to be gathered from conflicting evidence consisting chiefly of testimony of Moore given in plaintiff’s behalf and of the defendant given in behalf of himself. Moore testified among other things: “I am connected Avith the 1 vy Coal & Coke Company, plaintiff in this canse, in the capacity of general manager. I have been general manager four or five years. I knoAV the defendant B. M. Long and have known him fifteen years. I was employed by Captain Long to sell the 11,000 acres of land in the latter part of 1897 or middle part of January, 1898. I don’t remember dates. I was employed by Captain Long to malee a sale of the land. There Avas an agreement as to the commission, but it Avas not in writing. Captain Long proposed to pay me 50 cents per acre if I Avould take hold of this land and negotiate a sale. He said he had been dealing with some of his people and had been unable to consummate a deal, and if I Avould take my people in the deal he Avould sell the land for 1-11.00 per acre and pay me 50 cents per acre as commission to sell the land. I made an agreement that I Avas to interest my people, the Ivy Coal & Coke Company, in the purchase of lands in conjunction Avith his Georgia people, Messrs. Holderness, Stewart, Mander-A'ille, and some other people the names of whom I do not remember.” Besides stating in detail certain negotiations between the plaintiff company and the persons spoken of as the Georgia people Moore further testified as folloAYs: “With reference to my procuring the Ivy Coal & Coke Company to go into this deal, Captain Long made the statement that he had been unable to sell his land, and that the Georgia people were well acquainted with Mr. B. F. Moore, and if I could get Mr. Shackelford to join with Mr. B. F. Moore and myself, or the Ivey Coal &'Coke Company to join in the matter, that he believed we could interest the Georgia people as they had great confidence in Mr. B. F. Moore, and for doing this he would pay me 50 cents per acre as [542] commission on the price of $11.00 per acre for the land.” Defendant’s testimony tended to show that in January, 1898, when contemplating a sale to persons in New York, he told Moore he would give him $2,500 to sell the land; that he made no agreement to pay Moore 50 cents per acre in case the plaintiff company would join the Georgia people in a purchase, or authorizing him to sell only a half interest in the land; that Moore failed to negotiate a sale and in March, 1898, he, the defendant, sold to the Georgia people for $9.00 per acre, whereaf-ter, upon claim being made by plaintiff for services, he denied indebtedness, but wishing to free himself from obligation of Moore he gave to plaintiff property valued at fifteen hundred dollars as a gratuity. The evidence further tended to show that Holderness and his associates bought from defendant and procured from him a conveyance of the land entire to the Georgia-Alabama Coal Company, a corporation newly formed by them and defendant, and that pursuant to an agreement previously had between defendant, Holderness and associates and plaintiff, the latter bought from the neAV corporation a half interest in the land and also acquired a further interest in the land by lease. Plaintiff, thereafter as transferee of Moore, rendered to defendant a written statement in the form of an account purporting to show a balance due from him as commissions on the land amounting to $4,423.69, and some testimony tends to show that the defendant did not- object to that statement. Charges 22 and 23 each go upon the theory that a performance by Moore on his part of the contract was a prerequisite to his right to compensation under the terms thereof and to a recovery. These charges may not be above criticism, but considered in application to the evidence, they do not appear to have involved error since there was no proof from which the value of any services of Moore rendered outside of such special contract as may Lave existed, could have been found chargeable to defendant, and recovered for as upon a quantum meruit. [543] Tbe giving of charges 19 and 24 are justified by what is said above as to the necessity of a consideration to support whatever promise was relied upon for recovery. See Prince v. Prince, 67 Ala. 565. In charge 20 it is wrongly assumed that Moore had the right to effect a settlement with the defendant after the transfer of the claim to the plaintiff and notice thereof to the defendant. This charge should have been refused. The questions that the witness Moore was allowed to answer against plaintiff’s objections were within the latitude properly allowable on cross-examination, and the questions permitted against objection to the witness H. W. Long were each pertinent to matters introduced in evidence by plaintiff. It is not apparent that error was committed in allowing any of those questions, or in the exclusion of the testimony of H. W. Long as who were the stockholders of the Alabama-Georgia Coal Company, and when the same was organized. This question addressed to defendant: “What did that have to do with any commission with Walter Moore?” was properly disallowed, since it called for a conclusion and not for a fact. For the errors pointed out the judgment will be reversed and the cause remanded. Reversed and remanded.