BYBD, J.
1. The court did not err in overruling the demurrer. — ■Vide authorities cited on brief of counsel for appellee. — Patton ( Gov’r) vs. Gilmer et als., — Ala. R. 176.
2. Where a party to a contract performs services which he is bound by it to perform, and the contract is abandoned or rescinded by the consent of the parties to it before the entire services stipulated, and the contract fixes the compensation for the entire services to be performed, the party may recover a proportional part of the compensation — -that is, if he has performed three-sevenths of the services contracted to be performed, he is entitled to three-sevenths of the entire compensation in the absence of any agreement to the contrary, or any damages which the other party is entitled to have recouped. The mere rescisión of the contract does not defeat the right of the party who has performed services under it, from recovering a proportional part of the compensation stipulated by the contract for the entire services. Both parties have the right to stand upon the stipulation of the contract as to compensation to the extent of the services performed under it, unless a new contract is made which affects the rate or measure of compensation. We can perceive no error in the charges of the court excepted to by appellant.— Vide authorities cited on brief of counsel.
3. As the appellee was entitled to recover a proportional part of the compensation stipulated to be paid for the entire services to be rendered by him; and as the cotton was to be shipped by appellee to Liverpool to be sold, and for [107]*107his trouble and protection he was “to receive two cents or one penny sterling, per pound, from the nett proceeds of the sale of the cotton,” it was competent for the appellee to prove the rate of exchange between Mobile and Liverpool, in order to aid the jury in fixing the amount he was entitled to receive in the event “they were enabled from the evidence to determine what proportion of the whole service called for by the contract had been performed,” in order to “allow him such compensation for such part of the contract as he had performed, as that part bore to the whole price agreed on in the contract.” Eor if they adopted this rule, which they had the right to do ; and as the compensation was payable out of the nett proceeds of the sale, and appellee, by the contract, if it had been carried out, would have had possession of the cotton, and the right to the possession of the proceeds of sale in Liverpool, he would have been entitled to the two cents or penny sterling per pound at the place of sale, and the jury would therefore be authorized to consider the exchange between English currency and American, in estimating the damages to which the appellee was entitled. In this view alone was the evidence objected to admissible. All the evidence introduced on the trial is not set out, and although the damages ascertained by the verdict of the jury seem to us much larger than the evidence which is set out authorized, yet this is not a question for this court to consider, but for the court below on a motion for a new trial. We have no authority by law to reverse a judgmeent because the verdict is excessive or oppressive.
The judgment must be affirmed.
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