of timber trees standing on the land covered by the contract, 12 inches heart, measured at the stump, and the defendants were prevented from cutting this timber by the warning and objection of W. J. Nicholson, and none of the timber was cut after notice of the transfer, then the consideration of the note has failed, and the verdict should be for the defendants." The court refused to give each one of these charges, and the defendants thereupon excepted. There was verdict and judgment for the plaintiffs, and the defendants now appeal.

John Gamble and J. C. Richardson, for appellants.

STONE, C. J. The written contract evidences a sale by Nicholson to McKenzie & Morton of certain timber standing on 120 acres of land, described in the writing. The sale was an implied authority to enter and remove the timber within a reasonable time. The contract describes the timber sold as "all the pine timber 12 inches heart and up." There was contention in the court below as to the meaning of the phrase "12 inches heart and up," and testimony was properly admitted as to its meaning. 3 Brick. Dig. p. 291, § 2; Wilkinson v. Williamson, 76 Ala. 163. This controversy raised the question of the proper rule for the measurement of the timber.

The suit was on the note given in part purchase of the timber, and the defense was failure of consideration to a greater extent than the amount of the note. If the contention of McKenzie & Morton was correct, then they were forbidden and prevented from further removing the timber, when there remained upon the tract timber they had purchased of a greater value than the amount of the note. If the contention of Nicholson and his transferee Wimberly was the true rule of measurement, than McKenzie & Morton had obtained all the timber they purchased, and they were not entitled to remove any more timber. The testimony tends to show that McKenzie & Morton were stopped in getting timber in July, 1883. The note sued on was due in February, and was traded to Wimberly in September, all in 1883. The note is non-negotiable.

The testimony tended to show that the land, the timber on which was contracted to be sold, was the statutory separate estate of Nicholson's wife. She did not join in the sale.

The testimony is agreed as to the fact that Nicholson forbade McKenzie & Morton cutting and removing other timber, but the witnesses differ as to the reason he gave. Nicholson's version was that they had obtained all the timber they were entitled to under their purchase, and on that account he stopped them. Their testimony tended to show that he informed them the land belonged to his wife, and that she would sue them if they trespassed further upon it. Thereupon they ceased, and never afterwards cut any timber from the land.

As we have shown, the real question in issue was the proper rule of measurement, and upon that question the testimony was in conflict. It thus became a question for the jury. Charge three asked by defendants ought to have been given. Charges one and two were properly refused. If McKenzie & Morton had obtained all the timber they were entitled to under the contract, they were in no condition to defend against the note. McCausland v. Drake, 3 Stew. 344; 1 Brick. Dig. p. 383, §§ 119, 120.

Reversed and remanded.

PERSON et al. v. THORNTON, Register.

(Supreme Court of Alabama. February 20, 1889.)

1. INJUNCTION-SUIT ON BOND-ESTOPPEL.

In a suit on a bond given for an injunction against the further prosecution of a suit therein recited, the obligors are estopped from denying that there was such a suit pending.

2. SAME EVIDENCE.

It may be shown aliunde that the bond erroneously recites the name of the nominal defendant in the suit sought to be restrained, and that there was a suit pending in which the person so recited as defendant was the real party in interest, though others were the nominal defendants.

Appeal from circuit court, Colbert county; H. C. SPEAKE, Judge.

Action by L. B. Thornton, register, against A. S. Person and others, on an injunction bond. Defendants appeal.

Brickell, Semple & Gunter, for appellants. J. B. Moore, for appellee.

The

CLOPTON, J. The bond on which the action is founded is conditioned as follows: "Whereas, the said Alfred S. Person has filed his bill of complaint in the said chancery court, and has obtained thereon an order for the issuance of an injunction from the Hon. H. C. SPEAKE, circuit judge, to restrain or enjoin Sarah J. Harland and James T. Harland, their agents and attorneys, from the further prosecution of the action of ejectment against your orator, said Alfred S. Person, for the recovery of an undivided one-half interest in the lots or parcels of land devised to him and Sarah J. Harland by the will of William H. Person, deceased: Now, if the said Alfred S. Person, and W. H. Johnson, and J. C. Goodloe, or either of them, shall pay all damages which any person may sustain by suing out such injunction, if the same is dissolved, then this obligation to be void; otherwise to remain in full force." The original complaint was amended during the progress of the cause. amendment substantially avers that at the time the bill was filed, the fiat for the injunction obtained, the bond executed, and the injunction issued, there was pending in the circuit court of Colbert county an action at the suit of Sarah J. Harland against Samuel Rhodes, Stephen Parker, and Broden Greenhill, to recover the tract of land mentioned in the bond; that Person, having dispossessed her of her interest in the land, rented it to Rhodes, Parker, and Greenhill, against whom the action was brought, being in the actual possession; that Person employed counsel, and defended the suit, and claimed in open court that he was the landlord of the defendants in the suit, the real party defendant, and obtained one or more continuances on account of the sickness of himself or family; that there was no other pending suit in favor of James T. Harland or Sarah J. Harland, or both of them, to recover any lands of any other person; and that the bill in chancery, on which the order for the injunction was made, was filed by Person, and the bond sued on was executed to procure an injunction restraining them from the further prosecution of the suit above mentioned. The amendment further avers that the injunction issued restraining them from the prosecution of the suit for the recovery of the land described, and that they were thereby restrained from its further prosecution. The dissolution of the injunction, and the special damages sustained by its issue, are also averred.

The first assignment of error relates to the ruling of the court sustaining a demurrer to the first plea to the amended complaint. After craving oyer of the bond, and setting out a copy, the plea avers that there is not, and never was, such suit as that recited in the bond, and that plaintiffs have sustained no damage by reason of the injunction. It is a well-settled rule of general application that the admission of a fact in a bond, by recital or otherwise, estops the party executing the bond from asserting its non-existence. The

obligors in a forthcoming or replevy bond are estopped from denying the defendant's title to the property levied on, or from asserting that the levy is fictitious. Also the sureties in an administration bond will not be allowed to deny the regularity of the appointment of their principal; and the obligors in a bond given to supersede a judgment which has operated to suspend proceedings are estopped from asserting that it did not operate as a supersedeas. Mead v. Figh, 4 Ala. 279; Adler v. Potter, 57 Ala. 571; Savage v. Russell, 84 Ala. 103, 4 South. Rep. 235; Plowman v. Henderson, 59 Ala. 559; Kirkland v. Trott, 75 Ala. 324. In Willoughby v. Brook, 2 Cro. Eliz. 756, (decided as early as 1704,) it was held, in an action of debt on an obligation, which recited that certain suits had been commenced in the court of king's bench, that a plea averring there were no such suits was an ill plea, on the ground that the obligation estopped the defendant from saying that there was not any action there depending. These cases illustrate the general application of the rule. It has also been applied to injunction bonds. In Adams v. Olive, 57 Ala. 249, it was held that in a suit on an injunction bond the obligors-the principal having obtained the benefit of the delay-were not discharged because the judge who made the fiat had no authority to make such order, and that they would not be allowed to take advantage of such want of authority. The bond sued on recites the pendency of an action against the principal obligor to recover particular lands, which action it is sought to enjoin. Such recital effectually estops the defendants from asserting there was no such suit pending. Le Strange v. Roche, 58 Md. 26; 2 Herm. Estop. § 633. The next assignment relates to the overruling of a demurrer to the replication filed by plaintiff to the other special pleas of defendants. The pleas aver that no injunction was sued out or issued to restrain plaintiffs, or either of them, from the prosecution of an action against Rhodes, Parker, and Greenhill, or any other person except the principal obligor, and that there was no suit pending against him. The replication substantially alleges, in avoidance of the pleas, the same facts set forth in the amendment to the complaint. Several separate causes of demurrer are assigned, but, when considered as a whole, may be regarded as constituting one principal ground; which is, that the replication seeks by aliunde evidence to contradict, vary, or explain the recitals of the bond, and to show that it was given to enjoin a suit other than the one mentioned therein. When considered as an answer to the amended complaint, the effect of the pleas is that the defendants are discharged from liability on the ground that the bond is void or ineffectual in consequence of a misdescription as to the nominal parties in the suit, the prosecution of which was restrained.

The demurrer presents the question whether there is such variance between the recitals of the bond and the suit actually pending as to be incapable of identification by parol proof. In considering this question it should be observed that the bond is sued on as a common-law obligation. Its stipulation is not to pay a judgment rendered, or which may be rendered, in a particular suit; such as a boud to supersede, on appeal, a money judgment, or such as was sued on in the case of Hall v. Williamson, 9 Ohio St. 17. The condition is to pay any damages which any person may sustain by suing out the injunction if the same is dissolved. The recital of the suit is not an essential part of the contract. It constitutes the consideration of the bond the element of benefit to the promisor, and of detriment to the promisee. Though the obligors will not be allowed to disprove or deny the express consideration in order to avoid liability on the bond, it is open to explanation, when the effect is not to add to or vary the terms or enlarge the scope of the contract. This principle is frequently found applied in respect to the consideration expressed in deeds. Steed v. Hinson, 76 Ala. 298. In Meredith v. Richardson, 10 Ala. 828, the suit was on a bond given for the delivery of cotton levied on under an execution issued against two persons, but as the property of only one of

them. The bond recited the issuance of an execution against the latter, omitting the name of the other defendant, and for an amount different from that specified in the execution. It was held the obligors were estopped from denying the levy, and that, the bond having been given as a common-law bond, the variance in omitting to set out the name of both defendants, and to conform the sums recited to the execution, are matters which may be sup plied by parol evidence. Evidence aliunde makes apparent that there was but one pending suit to recover the lands specified in the bond, which involved the title of the principal obligor, and to which the recital in the bond could refer. The same character of proof may be received to show the circumstances under which the bond was made and the injunction obtained, and to identify the subject-matter to which its recitals referred. Chambers v. Ringstaff, 69 Ala. 140.

Tarleton v. Johnson, 25 Ala. 300, was an action for the conversion of several bales of cotton. The plaintiff offered in evidence the record of a former recovery in an action of detinue against third persons, to which the defendants objected on the ground that they were neither parties nor privies. In aid of the record, the plaintiff was allowed to prove by parol evidence that the persons against whom the detinue suit was brought were the bailees of the defendants, and that they employed counsel, and assisted in the defense of the suit, and, after judgment, paid a portion of the assessed value of the cotton. The court held the record admissible for the plaintiff, and that parol evidence could be received in aid of the record, to show defendant's connection with the suit. The decision was rested on the principle that the defendants were the real parties to the detinue suit, and that courts of justice will always take notice of the real parties. Both the amendment to the complaint and the replication aver that the pending action of ejectment was to recover the same lands specified in the recitals of the bond; that the defendants to that action were the tenants of the principal obligor, and claimed no other title,—only his title was involved in the suit. He employed counsel, and defended the suit in the names of his tenants, and obtained one or more continuances on account of sickness of himself or family. He was the real defendant, though he had not made himself a party as landlord; and this was the action the prosecution of which was intended to be, and was, in fact, delayed. The same degree of certainty and accuracy is not required in the recitals of a bond as in its description in pleading. It is sufficient if the court can ascertain with reasonable certainty that they are the same. The variance in the names of the nominal defendants and of the real defendant is susceptible of explanation, and the averments of the amendment and replication sufficiently establish the identity of the suit. Mitchell v. Ingram, 38 Ala. 395; Dickson v. Bachelder, 21 Ala. 699.

The other assignment of error relates to the exclusion of the evidence of the clerk of the circuit court, by whom it was sought to prove that there was not, and had never been, any action of ejectment in favor of the plaintiffs, or either of them, against Person pending in the court. As the defendants will will not be allowed to deny that there was such suit, they of course will not be permitted to prove its non-existence.

There are other exceptions, taken on the trial, which appear in the record, but those considered are the only ones assigned for error. Affirmed.

BIRMINGHAM LAND & LOAN Co. v. THOMPSON.

(Supreme Court of Alabama. February 20, 1889.)

FACTORS AND BROKERS-COMMISSION TO REAL-ESTATE AGENT.

A real-estate broker induced one P. to enter into a contract for the purchase of certain land of defendant, nothing being said about the title. Afterwards P. discovered that there was a large amount of purchase money due on the land. Held, that the fact that P., who stated that he was able to complete the purchase, refused to do so, on account of a defect in the title, although the purchase money stipulated to be paid by him would have enabled defendant to clear off the incumbrance, could not defeat the right of the broker to recover his commission from defendant.

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

N. F. Thompson sued the Birmingham Land & Loan Company, to recover commissions for the sale of land. The charges referred to therein are as follows: The plaintiff asked the court to give the following charge in writing, which the court did, and to which giving the defendant duly excepted: "If you find from the evidence that the defendant did not have the legal title to the land, and that there was an incumbrance thereon, to the amount of ten thousand dollars or more, and that the defendant did not offer to make Painter a title, and if you further find that the defendant only offered to give its bond for title to the land indorsed by Clisby and Jemison, the court charges you that there was a defect in the title." The defendant then asked the court to give the following charges to the jury, and duly excepted to the court's refusing to give them: "(E) If the jury find from the evidence that the contract between Painter and defendant did not specify or fix the time when the deed to the land should be executed, then the defendant was not bound to execute a deed until the purchase money was all paid; and if they find from the evidence that the defendant was able to pay off all the liens on the land, and convey a clear title to Painter when he paid the purchase money, then Painter had no right to refuse to complete the trade because of defect in the title. (F) If the jury find from the evidence that, at the time of the attempted sale of the land, the defendant had an interest in the land which they were willing and able to convey to Painter, and that defendant was able to make a good title to the land on the payment of the purchase money, and that Painter failed to comply with the terms of the sale, then the verdict must be for the defendant." There was verdict and judgment for plaintiff. Defendant now appeals.

Houghton & Jemison, for appellant. S. D. Weakley and Martin & McEachin, for appellee.

STONE, C. J. The undisputed facts in this case are as follows: On January 3, 1887, the appellant corporation, through its president, engaged the appellee, a real-estate broker, to sell a certain lot in the city of Birmingham, upon the agreement that if the appellee sold the lot during that day, at a specified price, the appellant would pay him as commissions the sum of $150. On the afternoon of the same day (January 3, 1887) the appellee, Thompson, negotiated with one Painter for the sale of the said lot at the stipulated price and terms, and carried Painter, the proposed purchaser, to the office of the appellant company, where said Painter and the president of the company entered into an oral agreement to buy and sell the said lot. There was no written evidence of the contract of purchase, but Painter paid the said company $10 to confirm the sale, and took the company's receipt therefor, which showed the terms of the sale, and the description of the lot. By special agreement with the defendant company that the payment should be regarded as a payment pro tanto on the first cash payment for the lot, Painter bought an option on the lot from another party for $350. Nothing was said about the