Assuming as we may for the purposes of this case, without deciding it, that the demurrer to the complaint was properly overruled, we may consider whether or not the plaintiff on the undisputed evidence has made out his case, under the 1st and 7th counts of the complaint, on which the cause was really tried.
These two counts are for damages for the breach of' an alleged contract for the sale of land -by defendant to the plaintiff. The first count sets, up, that plaintiff “made a contract with defendant for the purchase of said lands, and was put in possession by defendant, and paid the purchase money, that the last payment was made on or about November 28, 1895, 'while so in possession;, that it was agreed in said contract of purchase, that the plaintiff should pay the sum of $327.50 as the purchase price of said lands, and that upon the payment of said sum, defendant would execute to plaintiff a deed to said lands. Plaintiff avers that he ha® paid said sum of money, and that defendant upon demand has failed and refused to make said deed; that upon defendant’s failure to make said deed, plaintiff gave up possession of ■said land, to-wit, on about March i, 1896, and by reason of such failure and refusal plaintiff has been damaged in the sum of $900.”
The. seventh count sets up the contract as stated in the first count, and avers that while >so in possession of *299said lands, be paid tlie purchase price -agreed on, to-wit, |327.50, and that he moved oft on “the 1st day of March, 1890, by reason of defendant’s failure and refusal to convey as agreed, and that while in possession, relying on defendant’s contract to convey he made certain valuable improvements [describing them], for all of which improvements and as special damages plaintiff claims, the sum of fi900.”
Neither count avers, that when he abandoned the land, plaintiff delivered it to defendant, and the proof shows, with nothing to the contrary, that he gave defendant no notice of his intention to abandon possession, nor that he had done so; and there is nothing to show that defendant knew of plaintiff’s intention to abandon, nor that the defendant has since assumed possession or control of the property.
The defendant testified, that plaintiff has never paid him anything on the purchase price of the lands. The only other proof on the subject of payment is that offered by plaintiff himself. He testified that he “paid defendant all he owed him in any way.” But he shows how this was done; that “on March 26th, 1895, he had a settlement with the defendant at his (plaintiff’s) residence in the presence of his 'wife,” daughter and son. He says: “I was then due him a balance of $136.34, and this amount was all that I owed him for the land and everything, and he told me to pay this amount and he-would make me a deed to the land.” Tins settlement, it appears, the ifiaintiff approved and attempted, according t-o lii-s own evidence, to carry out. He testified that of this amount, stated by defendant to be due on settlement, he soon afterwards paid $120 to M. Sollie-for -defendant. This left, according to his own admission, $16.34 remaining due. He also stated, that he did not know how much he owed or had paid to defendant, and only knew what defendant said he owed him, when they settled; that when he paid this $120, he told defendant he was ready to pay the balance, and 'desired him to make him a deed to the land, and defendant said he would do it, but he did not; that he went to the defendant several times before he moved off the land and asked him to make a deed; that defendant promised t-o make-*300it, but put plaintiff off; from time to time. He also testified. that he moved off the place voluntarily, and did not tell defendant he was going to move off before he left. Plaintiff’s wife, son and daughter testified to substantially the same thing as to this settlement, its date, the amount that was stated to he due, and the payment of the $120 to M. Sollie. It thus appears, giving- all the force we may to the evidence of these witnesses, that there remained due ,on the land $16.84, which has never been paid. It is also noticeable, that the plaintiff nowhere shows, that the contract was that defendant was to make him a deed on the payment of the purchase money, as is alleged in the complaint. The law would imply, of course, that he should make one within a reasonable time from the full payment of the purchase money, hut this fact does not 'aid the failure to prove the terms of the contract as averred.
Nor has the plaintiff proved the demand for the deed and the refusal of defendant to execute it as is averred in the complaint. It was shown by plaintiff that he requested the defendant, upon his proffer to pay the’ $16.34 balance due on settlement, to make him a deed and he did not refuse to do so, hut promised each Ume that he would. This proof does not meet the allegations of the complaint, that plaintiff on the full payment of the purchase money for the land, moved off by reason of defendant’s failure and refusal to convey as agreed.
It is not pretended that plaintiff ever tendered the $16.34 to defendant, nor that he ever prepared a deed, or caused one to be prepared, and presented to defendant for execution, conveying to him the land he had purchased.—Wade v. Killough, 5 Stew. & Port. 450; Johnson v. Collins, 17 Ala. 318; Gentry v. Rogers, 40 Ala. 445; Chapman v. Lee, 55 Ala. 617.
■The conclusion is, that the general charge as requested by defendant should have been given.
Neversed ’and remanded.