— The court charged the jury, that, admit* ting the contract to be as stated by the witness Keeten, still, the plaintiff was entitled to recover on the last count in the de* claration, which was a count on an account stated. This presents the main question in the case, which we will proceed to consider. That the plaintiff could not recover on the special counts on the written instrument, is clear; because, no man is allowed to recover on a declaration whose allegations are not supported by proof, and the proof in the cause shows that the contract between the parties was substantially variant from that set out in the special counts of the declaration, founded on the written instrument.
The next question is, could the plaintiff recover on the common count — the count on an account stated, according to the proof ? If the contract between the parties had been that set out in the written instrument, which was in form a conditional note, the plaintiff, by proving that, he had performed the condition on his part to be performed, viz: that a team of four oxeii or mules could keep the mill sawing at the rate of a thousand feet of lumber per day, would be allowed, on proving its execution, to give the note in evidence under the common count, and could have recovered under *720that count, had there been any legal impediment to his recovery on the special counts. At least, I consider the authorities as favoring such a conclusion. Catlin v. Gilders, 3 Ala. 536; Hightower v. Ivy, 2 Porter, 308; Sprague & wife v. Morgan & wife, 7 Ala. 952; Payson v. Whitcomb, 15 Pick. 212; Crandal v. Bradley, 7 Wend. 311. But in this case, if the contract between the parties had been that set out in ths written instrument, there would have been no need for resorting to the common count; the special counts would Lave been satisfactory and sufficient. That, however, was not the contract, as shown by the testimony of Keeten, and the charge of the court is based upon the truth of his testimony. He proved, that the note sued on was signed by Hopper with the distinct admission on the part of Eiland that it did not contain the contract between them; that the contract in fact was, that a team of good oxen or mules would be able to keep the mill cutting one thousand feet of good, merchantable, square-edged lumber, per day, the year round, from timber hauled from the tract of land attached to and rented with said mill, and under an agreement that, at a convenient time, another instrument should be drawn, which would truly set out their contract.
In view of these facts, the writing in the hands of Eiland, upon which he instituted suit, never had the force of a contract good and complete in law. He had the right to retain it, as a written memorandum showing in some degree the nature of the contract between himself and Hopper, and useful for the purpose of adjusting and settling the real terms of the contract at some future time; but for nothing more. When he attempted to enforce it, as a complete and binding contract, contrary to his express agreement at the time he received it, by bringing suit and declaring on it as such, it became powerless in his hands for any such purpose. Such a use of it was an act of bad faith; and an attempt to put it to such a use could not be sanctioned by the court, in any way, without giving countenance to an act of bad faith; in other Words, to a fraud.y/Eor want of an absolute, unconditional delivery, this paper never had the character and qualities of a note, so as to make it evidence as such for any purpose.
Even conceding, then, that a note, or a conditional note *721when tbe condition bas been performed, may be given in evidence under a count on an account stated, and entitle tbe plaintiff in tbe action to a recovery, in tbe absence of stronger countervailing proof, this paper was never entitled to be received in that character. Nothing remains, but tbe parol agreement as proven by Keeten. It will not be pretended, that plaintiff could recover on an account stated with that proof, even if be could show that be bad performed all his undertaking according to such agreement.
It will be seen from these views, that we conceive tbe court below to have erred in tbe charge given to tbe jury.
As tbe defendant in error will have to shape bis declaration entirely anew, so as to make it conform to tbe contract as it was proven to exist between tbe parties, before another trial is bad, we deem it unnecessary to decide on tbe errors assigned relating to tbe objections that were taken to tbe answers of tbe witness, about his purchasing sappy lumber from Deariag, and using it in the construction of a flat-boat.
. No objection was made in tbe. court below to tbe parol evidence going to vary tbe written instrument, and therefore tbe objection cannot be noticed here. Erom what bas been said, however, it may be readily inferred that, if tbe objection bad been made, we should have been disposed to consider it untenable, under tbe proof in tbe case.
Eor tbe error in tbe charge of tbe court, the judgment below is reversed, and tbe cause remanded.