1. The prolixity ofthe pleadings, and the number of questions growing out of them, as well as those raised at the trial, render it Inconvenient to notice them separately ; for this reason we pi’opose to examine, very briefly, the law as applicable to this covenant, and then to make its application to the case on the record.
It appears that Pope, formerly had purchased two tracts of land from Taylor, but having failed to pay for them, the contract of sale, was rescinded: Taylor covenanting that Pope should remain in possession until the 25th December, 1838, at which time Pope was to surrender the premises, but in the meantime, both parties covenanted to use their best endeavours to sell the land, and if they succeeded in obtaining $3,152 or more, Pope was to receive the overplus.
By the terms of this covenant, it is clear that either party was at liberty to sell the land, provided the requisite sum could be obtained; but Taylor was not obliged to part with,his title until $3,152 was paid to him in money; he was not obliged, *198nor Pope; authorised to sell upon a credit. If, therefore, a new agreement was made, by which Taylor undertook to receive notes, or any other thing, or to give a credit, it could not be subjoined to this covenant, so as* to authorisé a recovery for the damages consequent on the breach of the ne tv agreement, in the suit on the covenant.
My own opinion is, that as the covenant, though signed by both the parties, individually, was for the benefit of Pope, that he would be entitled to any benefit or advantage, although it might not be in money, and therefore strictly within the pur'view of more and overplus; but a majority of the Court consider the covenant as securing nothing more to Pope than the overplus of the consideration received by Taylor, • over the sum named; they consider this to be the ordinary acceptation of the terms used, and if any thing more had been intended, it ought to have been inserted in the covenant.
2. Then to apply this law of the covenant to the record. The declaration after setting out the covenant, assigns these breaches:
1st. That Taylor did not use his best endeavours to sell the land for $3,152 or more, so that an overplus might accrue to Pope.
2d. That Pope made an agreement for the sale of the land to one McPherson, for $3,152, to be paid to Taylor, and was also to be allowed by McPherson, all the benefits of a subsequent sale after refunding that sum and the interest, which would have benefitted Pope, $2QOO; that this agreement was communicated to, and assented to, by Taylor, who afterwards refused to comply with it.
3d. That Taylor, by the use of reasonable diligence, could have sold the land for $5000, whereby an overplus would have accrued to Pope. Tnis declaration would be considered bad on special demurrer, in consequence of the attempt to introduce a new contract under this covenant, as is clearly the case iii the second breach; and according to the opinion of -a majority of the Court, the first breach is defective also, because, if Pope was onlyintitled to the overplus above $3,152, it-was neces- - sary to shew that more could have been obtained. But we are all of opinion that the demurrer was properly overruled, because it is general. The objection is one W'hich cannot be *199reached, since special demurrers have been abolished. Evans v. Watrous, 2 Porter, 328; Castles v.McMath, Ala. Rep. N. S. 326.
The second plea, is an answer to the second breach assigned, and although the word money is introduced, this does not disclose any new matter, because such is the legal effect of the averments, with respect to the agreement asserted to have been made with McPherson. The plea, then, is a denial of the declaration and presented, a proper issue, which should have been sustained.
The fourth plea, is in substance a denial of the first and third breaches; and the replication to it sets up a new contract, which is a departure from the declaration. The replication, therefore, should have been overruled, and the plea sustained.
An issue was already formed when the fifth plea was pleaded, and the only replication proper to it was a similiter ; but according to the opinion which has previously been .stated, as that of a majority of the Court, it was immaterial to Pope if a larger sum than $3,152, could not be obtained. The defendant wanted to withdraw this issue from the jury, and we all concur that he should have been permitted to do so, as its trial in an action of this nature, could only tend to embarrass the case. That there may be cases in which a party would not be permitted to withdraw a plea, is a question which need not be decided; it is sufficient to say, that if there are such, this is not one of them. The evidence given by McPherson, established a contract entirely different from that contained in the covenant, and the declaration, and ought therefore to have been rejected.
Without separately examining the other • evidence, in this place, we shall content ourselves with remarking, that it is all inconsistent with the law of the case, as we have heretofore stated it.
With respect to the charges given to the jury, none can be sustained, except the third.
As the view we have taken, will probably be decisive of this controversy, we omit to determine the question presented on the record, with respect tp the demurrer to the evidence; remarking, that the defendant has already attained all the benefit he could, by considering that the County Court also erred, in this particular.
Let the judgment be reversed and the case remanded.