GARDNER, J.
[1]
The nature of this litigation and the tendency of the evidence for the respective parties as well as the questions presented for consideration on this appeal sufficiently appear in the statement of the case. The assignment of error most strenuously insisted upon by counsel for appellant is that relating to the action of the court in overruling the motion for a new trial; the insistence being that the verdict was contrary to the overwhelming weight of the evidence to such an extent as to force the conviction that it was wrong] and unjust, and that therefore it should be set aside. ,
The evidence is somewhat voluminous, and treats ofi many details of conversation, correspondence, and numerous negotiations. It would serve no useful purpose to enter into a detailed discussion of the same here. The long experience of the plaintiff in the sale of machine tools and matters of that character, as well as his experience as a trained mechanic and his information in regard to the great demand for the purchase of lathes —together with his personal acquaintance and friendly relation for a number of years with the principal owner of the Le Blond Machine Tool Company — referred to in the statement of the - case, were evidently Important factors in securing the concessions granted the defendant by the Le Blond Machine Tool Company, by which the defendant was given the right to manufacture the Le Blond type of lathe, which the evidence is without dispute was the lathe most highly in favor and greatest in demand.
The agreement for a commission of 10 per cent, on the gross sales was not in writing; but the plaintiff explains that the defendant promised at one time to reduce the agreement to writing, and he was told- that he would be “treated right” by the defendant. It is clear, however, throughout all the evidence that the plaintiff was insisting strenuously upon 10 per cent, on the gross sales of the lathes as his commission. While the president of the defendant company denies that he agreed or made any arrangement with the xfiaintiff in regard to such a commission, yet a careful examination of his evidence discloses that in several particulars he corroborated the plaintiff in certain details, which would require too much space to here set out.
Witness Morrow, plaintiff’s former partner, and a principal witness for the defendant in this cause, was at the time of the trial vice president of the defendant company, although he owned only a few shares of stock. Before he became vice president, the position of assistant to the president was created for his special benefit. It further satisfactorily appears that at the very time these negotia
tions were being carried on, lie (Morrow) had accepted employment from the defendant. He insists that he made the arrangement with Hassinger, then vice president, for a commission on the basis of the net profits, and that he so notified the plaintiff. Plaintiff, however, testified that he met Morrow in a hotel in New York and asked him if he (Morrow) had any understanding with Has-singer, the vice president, as to compensation, to which he replied he did not; that on the other hand he (Morrow) told plaintiff “that he [plaintiff] was the man to make those things," and that he had nothing to do with that. At that time plaintiff did not know that Morrow had left his partnership, and had gone on October 1st to the defendant company. But we forego any further reference to the testimony in the cause. Suffice it to say it has been given most careful and thorough consideration.
[2]
The trial court had the witnesses before it, and an opportunity to note their demeanor upon the stand. Under such circumstances, the familiar rule announced in Cobb v. Malone, 92 Ala. 630, 9 South. 738, remains unaffected by recent legislative enactment. Hackett v. Cash, 196 Ala. 403, 72 South. 52; Hatfield v. Riley, 74 South. 380;
Price v. Price, 74 South. 381.
Under this well-settled rule we are unwilling to predicate a reversal of the cause upon the action of the court in overruling the motion for a new trial.
[3]
The next assignment of error insisted upon relates to the exception by the defendant to that portion of the oral charge of the court found in the statement of the case. The argument rests upon the theory that this portion of the charge ignores that part of the evidence showing that the transaction, out of which this suit grew, was had with N. C. Walpole and George M. Morrow as partners, and authorized a judgment in favor of the plaintiff alone upon refusal of defendant to pay him; the insistence being that the suit should have been brought in the name of the partnership, or rather in the name of Walpole and Morrow, partners in business, and not in the name of N. C. Walpole alone; and that a suit by N. C. Walpole would not be sustained by proof of transactions between the defendant and Walpole and Morrow, partners in business under the firm name of N. C. Walpole. As we construe the argument it, in substance, rests upon the variance between the allegations of the complaint and the proof which was a matter that could have been corrected by amendment during the trial of the cause.
The evidence for the plaintiff tended to show that whatever interest Morrow had in the partnership affairs had been purchased by him (plaintiff), which would include these commissions, and if the complaint should have alleged that the agreement was originally entered - into by the defendant and plaintiff and Morrow, as partners, and that plaintiff subsequently acquired Morrow’s interest, this was a matter which could have been easily remedied by amendment upon the trial of the cause.
The affirmative charge was not asked by the defendant, nor was the attention of the court in any manner directed to any question of variance. Under circuit court rule 34 (175 Ala. xxi), such a question of variance under these circumstances can avail the defendant nothing on this appeal. Woodward v. Steel, 192 Ala. 538, 68 South. 473. It is to be noted also that the complaint contained the common counts, and the jury could infer that the services were performed by the plaintiff under an implied contract subsequent to the dissolution of the partnership.^
[4, 5]
The charge set out in the statement of the case, refused to the defendant, would eliminate from the consideration of the jury any damages to be recovered on account of the sale of 100 lathes to the Le Blond Machine Tool Company under the contract of September 22, 1916. This contract for 100 lathes at $1,050 each to be sold by the defendant company to Le Blond Machine Tool Company was introduced without objection.
The plaintiff insisted that his commission was to be 10 per cent, on the gross sales of the lathes, and that this commission was in compensation for his having procured for defendant the right to manufacture these lathes as well as also giving assistance on his part in making sales thereof.
It further appears that in the original proposition of the Le Blond Machine Tool Company made to the defendant, the number of lathes to be manufactured was not limited, and the tendency of the evidence shows that the limitation of 200 lathes in the final contract was at the defendant’s request, or at least in accord with its wish. The witness Morrow testifying upon this point said:
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GARDNER, J.
[1]
The nature of this litigation and the tendency of the evidence for the respective parties as well as the questions presented for consideration on this appeal sufficiently appear in the statement of the case. The assignment of error most strenuously insisted upon by counsel for appellant is that relating to the action of the court in overruling the motion for a new trial; the insistence being that the verdict was contrary to the overwhelming weight of the evidence to such an extent as to force the conviction that it was wrong] and unjust, and that therefore it should be set aside. ,
The evidence is somewhat voluminous, and treats ofi many details of conversation, correspondence, and numerous negotiations. It would serve no useful purpose to enter into a detailed discussion of the same here. The long experience of the plaintiff in the sale of machine tools and matters of that character, as well as his experience as a trained mechanic and his information in regard to the great demand for the purchase of lathes —together with his personal acquaintance and friendly relation for a number of years with the principal owner of the Le Blond Machine Tool Company — referred to in the statement of the - case, were evidently Important factors in securing the concessions granted the defendant by the Le Blond Machine Tool Company, by which the defendant was given the right to manufacture the Le Blond type of lathe, which the evidence is without dispute was the lathe most highly in favor and greatest in demand.
The agreement for a commission of 10 per cent, on the gross sales was not in writing; but the plaintiff explains that the defendant promised at one time to reduce the agreement to writing, and he was told- that he would be “treated right” by the defendant. It is clear, however, throughout all the evidence that the plaintiff was insisting strenuously upon 10 per cent, on the gross sales of the lathes as his commission. While the president of the defendant company denies that he agreed or made any arrangement with the xfiaintiff in regard to such a commission, yet a careful examination of his evidence discloses that in several particulars he corroborated the plaintiff in certain details, which would require too much space to here set out.
Witness Morrow, plaintiff’s former partner, and a principal witness for the defendant in this cause, was at the time of the trial vice president of the defendant company, although he owned only a few shares of stock. Before he became vice president, the position of assistant to the president was created for his special benefit. It further satisfactorily appears that at the very time these negotia
tions were being carried on, lie (Morrow) had accepted employment from the defendant. He insists that he made the arrangement with Hassinger, then vice president, for a commission on the basis of the net profits, and that he so notified the plaintiff. Plaintiff, however, testified that he met Morrow in a hotel in New York and asked him if he (Morrow) had any understanding with Has-singer, the vice president, as to compensation, to which he replied he did not; that on the other hand he (Morrow) told plaintiff “that he [plaintiff] was the man to make those things," and that he had nothing to do with that. At that time plaintiff did not know that Morrow had left his partnership, and had gone on October 1st to the defendant company. But we forego any further reference to the testimony in the cause. Suffice it to say it has been given most careful and thorough consideration.
[2]
The trial court had the witnesses before it, and an opportunity to note their demeanor upon the stand. Under such circumstances, the familiar rule announced in Cobb v. Malone, 92 Ala. 630, 9 South. 738, remains unaffected by recent legislative enactment. Hackett v. Cash, 196 Ala. 403, 72 South. 52; Hatfield v. Riley, 74 South. 380;
Price v. Price, 74 South. 381.
Under this well-settled rule we are unwilling to predicate a reversal of the cause upon the action of the court in overruling the motion for a new trial.
[3]
The next assignment of error insisted upon relates to the exception by the defendant to that portion of the oral charge of the court found in the statement of the case. The argument rests upon the theory that this portion of the charge ignores that part of the evidence showing that the transaction, out of which this suit grew, was had with N. C. Walpole and George M. Morrow as partners, and authorized a judgment in favor of the plaintiff alone upon refusal of defendant to pay him; the insistence being that the suit should have been brought in the name of the partnership, or rather in the name of Walpole and Morrow, partners in business, and not in the name of N. C. Walpole alone; and that a suit by N. C. Walpole would not be sustained by proof of transactions between the defendant and Walpole and Morrow, partners in business under the firm name of N. C. Walpole. As we construe the argument it, in substance, rests upon the variance between the allegations of the complaint and the proof which was a matter that could have been corrected by amendment during the trial of the cause.
The evidence for the plaintiff tended to show that whatever interest Morrow had in the partnership affairs had been purchased by him (plaintiff), which would include these commissions, and if the complaint should have alleged that the agreement was originally entered - into by the defendant and plaintiff and Morrow, as partners, and that plaintiff subsequently acquired Morrow’s interest, this was a matter which could have been easily remedied by amendment upon the trial of the cause.
The affirmative charge was not asked by the defendant, nor was the attention of the court in any manner directed to any question of variance. Under circuit court rule 34 (175 Ala. xxi), such a question of variance under these circumstances can avail the defendant nothing on this appeal. Woodward v. Steel, 192 Ala. 538, 68 South. 473. It is to be noted also that the complaint contained the common counts, and the jury could infer that the services were performed by the plaintiff under an implied contract subsequent to the dissolution of the partnership.^
[4, 5]
The charge set out in the statement of the case, refused to the defendant, would eliminate from the consideration of the jury any damages to be recovered on account of the sale of 100 lathes to the Le Blond Machine Tool Company under the contract of September 22, 1916. This contract for 100 lathes at $1,050 each to be sold by the defendant company to Le Blond Machine Tool Company was introduced without objection.
The plaintiff insisted that his commission was to be 10 per cent, on the gross sales of the lathes, and that this commission was in compensation for his having procured for defendant the right to manufacture these lathes as well as also giving assistance on his part in making sales thereof.
It further appears that in the original proposition of the Le Blond Machine Tool Company made to the defendant, the number of lathes to be manufactured was not limited, and the tendency of the evidence shows that the limitation of 200 lathes in the final contract was at the defendant’s request, or at least in accord with its wish. The witness Morrow testifying upon this point said:
“The proposition made out to the Birmingham Machine & Foundry Company was practically the same proposition, except in the final contract we got it specified that we could not make over 200 lathes, with the stipulation that when we finished that we could make more, provided both parties agreed to it. The fact that the defendant company had procured the right from Le Blond was used as an inducement with the Baldwin Company and the Morgan' Company to procure their business. _ It was _ that that put the defendant company in a position to manufacture the Le Blond lathes.”
The first agreement appears to be dated October 16, 1915, and the'contract with Morgan & Co., purchasing agents for the British government, for 120 lathes is of date October 21, 1915, while the formal contract between the Le Blond Company and the defendant, specifying a limitation of 200 lathes, is dated October 20, 1915. We are of the opinion the jury could infer that the sale of these lathes to Le Blond Machine Tool Company by the defendant came within the agreement stated by the plaintiff, and that there was no error in refusing said charge. Moreover, this contract could properly be considered by the jury in estimating the value of plaintiff’s
services under the common count for work and labor done.
[6, 7]
The plaintiff insisted that he was entitled to 10 per cent, as commission on the gross sales, while the defendant on the other hand contended that no such contract was made. The evidence of witnesses Morrow and Hassinger indicate that, in fact, the plaintiff had no contract for any agreed amount of commissions on account of the sale of these lathes at the time he began negotiations with the Le Blond Machine Tool Company. The testimony of these witnesses tends to show that the agreement as to the 5 per cent, commission on the net profits was only applicable to the Baldwin Locomotive Works, which contract did not materialize; but that, as the plaintiff had performed considerable service in the matter, they regard-, ed it as proper that he -should be given a percentage on the profits out of the Morgan contract. This concession on the part of Has-singer appears only by way of a statement by Hassinger to Morrow — plaintiff not being present — in New York at the time the Morgan contract was signed in the latter part of October, 1915, and at a time subsequent to the withdrawal of Morrow from the partnership agreement with the plaintiff, and when he was in fact a salaried employs of tlie defendant company. If, therefore, there was no valid contract for a commission of 6 per cent, of the profits, this would lead to the proposition either that defendant agreed to pay the plaintiff 10 per cent, of the gross sales, as he insisted, or that it had no contract with him at all, and must pay him therefore the reasonable value of his services.- It was therefore entirely proper to show by the plaintiff, who qualified as a competent witness, that the reasonable value of the services rendered was a minimum of 10 per centum on the gross sales. It was also not objectionable to offer proof as to the usual commissions in the machine tool business for making sales. There is no reversible error therefore in the action of the court in overruling the objection to this testimony.
We have .here treated the assignments of error argued by counsel for appellant, and we find nothing in any of them calling for a reversal of the cause. The judgment will accordingly be affirmed.
Upon consideration of the cause by the entire court, Justices MAYFIELD, SOMERVILLE, and THOMAS concur with the writer in the opinion. Chief Justice ANDERSON and Justices MeCLELLAN and SAYRE concur in the opinion, except as to the charge refused defendant, set out in the statement of the case, and they entertain the view that the lathes involved in the contract between defendant and Le Blond Machine Tool Company should not have entered into the consideration of the jury, and that the commission as to these lathes could be deducted from the judgment rendered, and the cause as thus modified should be affirmed. They therefore in part dissent.
Affirmed.
MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur. ANDERSON, C. J., and MeCLELLAN and SAYRE, JJ., dissent in part.