Cocciola v. Wood-Dickerson Supply Co.

44 So. 541, 152 Ala. 283, 1907 Ala. LEXIS 30

Opinion

HARALSON, J.

The bill avers a joint, contract between Louis and Jennie E. Cocciola, the defendants, and C. H. Rast, and the proof shows that tlie contract was with L. Cocciola alone with said Rast. This was a clear variance between the allegations and proof, which defeats a recovery of so much of the claim of the plaintiff for materials as was furnished by complainants, to said Rast, and for that part of the claim the bill cannot be sustained.

The decree below will be corrected, and one will be here rendered, disallowing that part of the claim for materials furnished said Rast, and affirming it as to the amount agreed on for the materials furnished to the defendants, Louis and Jennie E. Cocciola, allowed by the court below.

Corrected, rendered in part, affirmed in part.

Tyson, C. J., and Simpson and Denson, JJ., concur.