Malone-Beal Mer. Co. v. Greer

EVANS, J. Plaintiff in the court below sued defendant upon a verbal contract, which plaintiff alleged had been entered into between plaintiff and defendant. There were originally two counts to the complaint, but demurrers were sustained to these counts, and count 8 was added by way of amendment. Upon this count the case was tried. There were sis pleas filed to count 8. Demurrers were sustained to pleas 3 and 5. The appellant here, defendant below, now assigns as error the ruling of the trial court in sustaining the demurrers to pleas 3 and 5, and the refusal of the court to give written charges numbered 1, 2, 3, 4, and 5 requested by defendant. Plea 5 was clearly subject to the demurrer interposed by plaintiff. The contract set up in the complaint, and that part of the contract set up in plea 5, showed not a contract, or “special promise, to answer for the debt, default, or miscarriage of another,” but a contract by defendant to pay the debt, which he contracted with plaintiff, in a particular way. — Aultman v. Fletcher, 110 Ala. 458, 18 South 215; Woodruff v. Scaife, 83 Ala. 152, 3 South. 311. “The statute of frauds was not enacted to protect persons against the payment of their own debts, but the debts of others.” — Files v. McLeod, 14 Ala. 613. Plea 3 was no answer to the complaint; but it was good in form, and was not subject to the demurrer interposed. The allegations of the complaint showed that the agreement between plaintiff and defendant Avith reference to defendant carrying out plaintiff’s contract Avith the Savannah Guano Company was not such as Avas affected by the statute of frauds, but Avas simply [547] a contract by which defendant was to pay his own debt to plaintiff, in part, in a particular way. If this allegation was not true, then its' falsity could be shown under plea of the general issue. Charge 3 is the affirmative charge asked by defendant. It is our opinion that this charge should have been given. In a suit upon a contract like the one here sued upon, it is necessary to allege and prove a consideration for the promise of defendant. The evidence shows, without dispute, that the consideration proved was much more than the consideration alleged; and there was, therefore, a variance between the allegations and the proof. The proof showed that a part consideration for the promise, on the part of defendant, to pay plaintiff commissions on the sales of guaño to those who were former customers of plaintiff, was that plaintiff would pay defendant all losses by reason of the failure of any of them to pay for the guano sold to them. There is no allegation of this kind in the complaint. “In declaring on a simple contract, it is necessary to state the whole consideration expressly and formally, correspondent with the facts in the case, and coextensive with the contract; for a variance between the contract alleged and the contract proved is fatal on trial.” — Hendrick v. Seely, 6 Conn. 176; Encyc. of Pl. & Pr. vol. 4, p. 930. “In an action for damages for failure or refusal to perform, the defendant must state the entire consideration, and the entire act to be done in virtue of the consideration; and the proof must correspond with the allegations.” — James v. Adams, 8 W. Va. 568; Newton v. Brook, 134 Ala. 272, 32 South. 722; Maury v. Olive, 2 Stew. 472; Jones v. Powell, 15 Ala. 824. It follows, from the foregoing, that the court erred in refusing the affirmative charge to defendant. [548] We deem it unnecessary to consider the other assignments of error, as they all relate practically to the same matter discussed under the charge above considered. For the errors pointed out, the judgment is reversed, and the cause remanded. Reversed and remanded. Dowdell, C. J., and Anderson and Sayre, JJ., concur.