The common counts for money due by account on, to wit, July 7, 1907, and special counts 13 and 14, present the controverted issues on last appeal. The right to declare on common counts and under the terms of a contract is stated in Martin v. Massie, 127 Ala. 504, 508, 509, 29 So. 31, as follows:
"The general rule is that where there is an express contract, the plaintiff cannot resort to an implied one, but must recover, if at all, on the express agreement. 'An exception to the rule, however, is that he may recover on the common counts, although the evidence discloses a special agreement, when such agreement has been executed and fully performed, and no duty remains but the payment of the price in money by the defendant. But so long as the contract continues executory, the plaintiff must declare specially,' and prove performance."
This rule has been recognized in Moundville Lumber Co. v. Warren, 83 So. 479;2 Hartsell v. Turner, 196 Ala. 299, 300,71 So. 658; Russell v. Bush, 196 Ala. 309, 315, 71 So. 397; Lowy v. Rosengrant, 196 Ala. 337, 71 So. 439; Joseph Bros. Co. v. Hoffman McNeill, 173 Ala. 568, 56 So. 216; Maxwell v. Moore, 163 Ala. 490, 50 So. 882; Carbon Hill Coal Co. v. Cunningham, 153 Ala. 573, 44 So. 1016; Worthington v. McGarry, 149 Ala. 251, 253, 42 So. 988; Anderson v. Rice,20 Ala. 239; Snedicor, Adm'r, v. Leachman, Adm'r, 10 Ala. 330; Reeves v. Wallace, 1 Port. 116; Graydon v. Buford, 1 Ala. App. 668,56 So. 77.
The testimony of Mr. McCormick was to the effect that his contract with the Dorchester Lumber Company stipulated that he should be paid $200 a month and 5 per cent. of the earnings of said corporation; that defendant contracted further to permit him to purchase $4,500 of the stock of H. L. Badham's holdings in said corporation. The legal effect of this contract was given full discussion on the first appeal. On this appeal Mr. McCormick testified that about February, 1907, he and H. L. Badham took up the question of selling 500 shares of stock standing in said Badham's name "including my stock" (McCormick's interest in the $4,500 of stock in question). The conversations between Badham and McCormick as to proposed sale of the stock to a Mr. Lindsay, and the fact *Page 12 that "defendant informed the plaintiff that the terms and everything were agreed upon before he decided to let his brother have it, at $200 a share," was only competent evidence as it may tend to show recognition on the part of said Badham of McCormick's limited interest — some of the shares of stock about to be sold to V. C. Badham.
Plaintiff further testified that in February, 1907, defendant requested plaintiff to meet him on the train going to Branchville; that he did so and was informed by Badham that "he had decided to sell his interest in the business to his brother" for $100,000 for the half interest; that was $200 a share; that said Badham wanted to know whether witness desired to "continue with the business, * * * or come back to Birmingham," and whether witness would agree to let V. C. Badham have the stock in which witness was interested or "wanted to remain with the business and keep the stock," to which McCormick testified, he replied that, if H. L. Badham was going to sell his interest, witness would prefer not to stay with said lumber company. Their agreement, alleged to have been made on that occasion, is thus stated by McCormick:
"I would agree to let the stock I was interested in go with what he was selling to his brother. He and I made an agreement about it on that occasion, and he told me that he would settle with me; make it entirely satisfactory with me if I would consent to let all the stock go to his brother; and I agreed to that. He told me that he would settle with me."
Plaintiff offered in evidence a letter of date February 22, 1907, from H. L. Badham to McCormick, containing this statement:
"I also note what you say in reference to the sale of my interest. I judge from telegram received last night from V. C. that he will arrange the payment of the $15,000 in time to protect his interest. If he does not do so, as you know I am under contract to sell to Lindsay, however, I feel sure from what you and he both say that there will be nothing in the way of your closing this trade; then it will be a question of ninety days and I will be in position to give you an opportunity to sell the entire plant provided V. C. is not able to carry out his contract. In other words, I am not definitely tied up except for the ten days."
This evidence is competent only as it may tend to shed light upon the question of whether or not there was a subsequent contract between the parties as to the sale of the stock to V. C. Badham and what that contract relation was.
For a like reason may have been admitted in evidence the letter of March 5 of the same year, in the following words:
"Dear Mack: Your letter and check received. I am very very sorry V. C. made the trade for I don't see how he can pull through. Do the best you can for him and save him if it's possible. I feel blue and discouraged. The other trade would have saved both of us.
"Your friend, H. L. B."
The real question presented, under plaintiff's own statement of what was said between him and H. L. Badham, was: Did the latter purchase or agree to purchase said stock of McCormick? In his testimony H. L. Badham denied he made offer or agreed to purchase any interest in said stock from McCormick; that —
"On or about February 15, 1907, I telephoned him [McCormick] to meet me on the train, and I told him I made this tentative agreement for the option, and Mr. McCormick said, 'He will never carry it out, but it is nice for you to give him the show; let me get away from here as soon as you can.' And I told him I would look out for him [McCormick] in Birmingham, but to stay there until the demonstration was made whether or not he could carry out the trade. Not one word was said that he claimed an interest in the stock. I did not volunteer to pay him anything on account of his stock. Mr. McCormick did not say a word indicating he understood I was legally or morally bound to pay him anything on account of this stock. I did not use the expression that I would make a satisfactory settlement with him. He consented to continue on there at the sawmill pending this experiment as to whether or not my brother could make $6,000 a month out of the mill to pay me. He did continue. My brother did not pay me the $6,000 a month he agreed. He did not pay me anything except the $15,000. As long as Mr. McCormick remained, he wrote me frequently. Up to the time he left, he never did write me a line in any way indicating he thought I was due him a copper cent on any account whatever."
The evidence in question was admissible, as it may tend to corroborate the plaintiff's testimony under the issues made by the common counts and special counts 13 and 14; and the court erred in sustaining objections thereto.
The rehearing is granted; judgment of affirmance set aside, and reversed and remanded.
ANDERSON, C. J., and SOMERVILLE, THOMAS, and BROWN, JJ., concur.
2 203 Ala. 488. *Page 13