The complaint was on the common counts for an account and for goods, wares, and merchandise sold and delivered, and was in the forms laid down in the statute. The demurrers to these counts were properly overruled.
Nor was there a variance between the probata and allegata. The proof for plaintiff *Page 89 showed a balance due on a contract for the delivery of certain cross-ties, with nothing left to be done under the contract but the payment of the balance due. Where this is the case, the amount can be claimed under the common counts, and recovery had on proof of the contract, its performance by plaintiff, and a failure to pay by defendant. Merrill v. Worthington, 155 Ala. 281,46 So. 477.
The issues involved in this case made by the facts as proved did not embrace the market value or even the reasonable value of the ties claimed to have been delivered on the contract. The one question on that point was, Were the ties delivered of the specifications as defined in the contract? If so, the price was fixed; if not the defendant would have been entitled to a verdict. So that, proof of the value of the ties was properly excluded.
The defendant sought to introduce in evidence what purported to be "some ends" claimed to have been sawed off the ends of some of the ties delivered on the contract. A sufficient ground upon which to sustain the court's ruling excluding this testimony is the parts of the ties offered in evidence were not sufficiently identified, by the witness Gwin, in connection with whose testimony these "tie ends" were offered.
Charge No. 1, requested in writing by defendant, was fully covered by the court in his oral charge to the jury.
No bill of particulars appears in the record, and hence we must presume that the court properly refused the charge.
There is no evidence in the record fixing the value of the timber in the ties at 20 cents per stick; the plaintiff testifying that the agreed price was 25 cents per tie and defendant that the aggregate value of the timber was $75 or $80. Charge 3, requested by the defendant, sought affirmative instructions as to the value of the timber, where there was a conflict in the testimony as to value. This in itself would justify the trial court in refusing the charge as requested.
We have examined the record carefully. The questions were fairly presented to the jury, and by the jury decided. The trial court did not err in overruling the motion for new trial.
We find no error in the record, and the judgment is affirmed.
Affirmed.