On and before April 5th, 1899, Stephen Touart and William McDonald (referred to in Touant’s testimony as Willie) were paiffners in the coal and wood business in Mobile under the name of Mobile & Tuscaloosa Goal & Transportation Company. On that day or just previously it is claimed they made a contract with the Yellow Pine Lumber Company through its secretary and treasurer, D. J. McDonald, a brother of William McDonald of said partnership, to take slabs from said company’s saw mill at 20 cent's per cord. Some days after April 5th, 1899, Touart purchased the interest of his partner said William (or “Willie”) McDonald in said business and in said alleged contract, and this action is prosecuted by him for its alleged breach. As to Avhat that contract was the evidence in its most favorable tendencies for the plaintiff goes to show the following state of facts: Touart on April 5th (or two days before, it is not 'dear 'Which.) 'went to see D. J. McDonald, defendant’s secretary and treasurer, and said to him: “Dan, I came down here to see you.. Willie [McDonald, plaintiff’s then partner] tells me that you have sold him the output of this mill at twenty cents per cord for your slabs, and I want to know if it is so, and he says, ‘I did say so.’ I said, The reason I come to you I am going to make a contract with the Mobile .Ice Company for one thousand cords with the privilege of two *65thousand, and I want to know whether you have done this or not 'before I go into this contract,’ and he says, ‘I did,’ and he says, ‘unless (there has been other arrangements made, and I don’t think they have because if they were they would have to come through me, but I will see Mr. Miles, [the president of the Lumber Company]. I left him and went on down, and two days after I met him on the northeast 'corner of Royal and St. Francis, and I said, ‘Mr. Ban, did you see Mr. Miles?’ He said, ‘I didn’t, hut I am satisfied everything is all right because if it was not it would have to come through me,’ and I said, ‘well, if that is the case, I am going to make arrangements for the slabs;’ he said, ‘all right, go ahead.’ ” Touart thereupon made arrangements with the Mobile Ice Company to sell it one thousand with the privilege of selling it two thousand cords of slabs. Defendant’s mill was located on One Mile Creek, in or near Mobile, •and slabs were to he taken by Touart at the mill. The mill was thereafter operated and there was sufficient output of slabs by it to supply Touart itwo thousand cords or more. Within six or seven weeks after the last eonversation detailed above between Touart and McDonald about one hundred and twenty-six cords of slabs were taken by Touart, at twenty cents per cord and delivered to the Ice Company, and the defendant company received payment therefor from Touart. Then the defendant refused to make further delivery under the alleged contract, but offered to continue delivering 'at 65 cents per cord which proposition Touart declined. The mill lias all along been in 'operation putting out slabs and for aught that appears will so continue indefinitely. Upon these facts it is clear to us that the only contract entered into between the defendant and plaintiff’s firm was that made between McDonald acting for the defendant and Touart’s partner, denominated “Willie” in his testimony, acting for plaintiff’s, firm, 'and referred to by Touart when lie first approached McDonald in his statement then made that “Willie tells me (that you have sold him the output of this mill at twenty cents per cord for your slabs.” To this McDonald then assented and afterwards confirmed. All else that passed between Touart and McDonald was on the part of Touart an ex*66planation of Ms desire to be fully assured that the Lumber Company through McDonald had sold the slab output of the mill to Willie, and on the part of McDonald tie giving of the assurances Touart desired; Touart saying in effect to McDonald if yon have sold your slab output to Willie I can and will make a contract to supply two thousand cords to the Mobile Ice Company, and McDonald in effect saying finally to him: It is all right, you can rely upon my company’s having sold the output of the mill to Willie. Go ahead. McDonald never once 'said anything about selling to plaintiff’s firm one thousand cords of slabs or two thousand cords, but referred throughout to a sale of the whole output of the mill. And Touart never once inquired of McDonald whether he had sold to his partner one thousand or two thousand or any other definite number of cords of slabs, but his inquiry throughout was whether he had sold the output of the mill. And there was, we repeat and conclude, on (the tendencies of the evidence most favorable to the plaintiff, no contract for any definite quantity of slabs, but only an agreement on the part of the Lumber Company to sell to Touart’s firm the entire slab production of its mill. The exigencies of .this appeal do not require us to determine whether this agreement was void for indefiniteness. It will suffice for all present purposes to say that this agreement, the only one the evidence tended to establish, is not the agreement counted on in the complaint; and that the sole agreement counted on was one of sale of one thousand or, at the option of plaintiff’s firm, two thousand cords of slabs, or of a sufficient quantity of the slab production of defendant’s mill to fill the contracts with the Ice Company for one thousand, or, at plaintiff’s -option, two thousand cords of slabs, and that there was no evidence tending to support either form of the agreement •as set up iu the complaint. Here then was a fatal variance between the averments of the complaint and the evidence, an utter failure to prove the contract averred, a failure to adduce any evidence tending to prove it; and the trial court did not err in excluding all the evidence and giving the affirmative charge for the defendant.
*67It is unnecessary to inquire whether the first, second and third counts of the complaint were open to the demurrers which the trial court sustained. With those counts continuing in the case, the result would have been the same: The general charge would have been proper against a recovery upon them. So, too, it is not necessary to consider the rulings on the competency of testimony. Had all the rulings invoked in this connection been favorable to the plaintiff, he still would have had no evidence before the jury tending to prove the contract laid in his complaint.
Of . course, the foregoing conclusions necessitate our concurrence in the trial court’s ruling on the motion for a new trial.
Affirmed.