Opinion
7 Div. 938.
May 23, 1933.
Appeal from Circuit Court, Calhoun County; W. B. Merrill, Judge.
Action by H. D. Moore against the Pan American Petroleum Corporation, for breach of contract. From a judgment of nonsuit, plaintiff appeals.
Affirmed.
Rutherford Lapsley, of Anniston, for appellant.
Counsel argues for error in refusal to admit in evidence the instrument offered, citing 13 C. J. 277, 335; Sturdivant v. Mt. Dixie S. L. I. Co., 197 Ala. 280, 72 So. 502; Walkins v. Rymill, 10 Q. B. D. 178; Sellers v. Greer, 172 Ill. 549, 50 N.E. 246, 40 L.R.A. 589.
Knox, Acker, Sterne Liles, of Anniston, for appellee.
Authorities cited by appellant are inapt. The instrument offered is not the same as that alleged in complaint, and was inadmissible.
Assuming, as appellant would have us do, that the sole determinative question on this appeal is the admissibility in evidence vel non of "the contract offered in evidence by the plaintiff Trans. pp. 12 to 18 inclusive," we would find, upon a reference to the transcript pages noted, that the "contract" he mentions is really two apparently separate and distinct "contracts."
But we are not disposed to be technical, so we simply hold that neither of the purported "contracts" was admissible in evidence for the simple reason, waiving all others, that neither of same is, or corresponds to, that described — abortively, and insufficiently, no doubt — in his complaint.
So the judgment of the lower court is affirmed.
Affirmed.