#### Francis *v.*Parker.

*Assumpsit.*

(Decided November 23, 1913.

63 South. 780.)

*Bills and Voles; Failure of Consideration; Jv,ry Question.*— Although the evidence would have supported a contrary finding, the action being on the note given for the purchase price of the land; it warranted a finding also that defendant was entitled under his contract to a tract of five acres, the boundaries of which were pointed cut by the grantor, which was not included in the deed tendered, and as this conflict was for the jury to reconcile, the court was in error in charging affirmatively for the plaintiff.

Appeal from Shelby County Court.

Heard before Hon; E. S. Lyman.

Assumpsit by W. G. Parker against Columbus Francis. Judgment for plaintiff and defendant appeals.

Reversed and remanded.

*280Riddle & Ellis, for appellant.

There were differences in the inferences which could he .drawn from the evidence, and the court was.in error in directing a verdict for the *plaintiff.*— Drew *v. Western 8. & F. Go.,*55 South. 997.

Brown, Lebper & Koenig, for appellee.

The evidence, of the defendant showed that he got what he bought, as the discrepancy was only about one half an acre, and the description is more or *less.*— Thompson *v. Shepherd,*85 Ala. 611; *Pearson v. Heard,*135 Ala. 348; *Brassell v. Fish,*153 Ala. 558.' The court was therefore not in error in directing verdict for plaintiff.

WALKER, P. J. —

To this action on a. promissory note the defendant, the appellant here, filed several pleas upon which issue was joined. Plea M averred: “That the note sued on has failed in consideration in this: Defendant purchased of one Will Seales a certain tract of land in Shelby county, Ala., some time in the month of January, 1911, which said tract of land was pointed out to him, together with the boundaries thereof, by said Will Seales, at the time of the said purchase; and defendant avers that he executed the note sued on to W. G-. Parker, plaintiff in this cause, to secure the payment of the purchase price of said land, which was done under and by virtue of the directions and consent of the said Will Seales; and defendant avers that when he purchased said tract of land as aforesaid, the said Will Seales agreed as a part of this said purchase contract to furnish to defendant a deed to said tract of land, but defendant avers that the said Will Seales has never furnished defendant a deed to the same, and he avers that said W. G. Parker offered de*281fendant a deed which did not describe tlie said tract of land, but only a part thereof, and which defendant refused to accept and did not accept; and defendant avers that, though often requested so to do, neither the said Will Seales or said W. G. Parker has ever furnished or offered to furnish defendant with a deed to said tract of land.” There was evidence in the case tending to support every material averment of this plea. The jury might well have found from the evidence adduced that the land which was the subject of the contract between Seales and the defendant was identified by the description contained in a deed made by Seales to another person who had failed to consummate his purchase, and that the understanding of the parties to the contract was that the defendant was to get only the land described in that deed. But this was not a necessary inference from the undisputed evidence in the case. Under another aspect of the evidence, the conclusion would have been warranted that the defendant was entitled under his contract with Seales to a tract containing five acres, the boundaries of which were pointed out by Seales, and all of which was not included in the description in the deed to another Avhich was referred to. The conflict in the evidence on this point made the question one for the determination of the jury. There being evidence to sustain the averments of a plea upon which issue Avas joined, it Avas error to give the affirmative charge requested by the plaintiff.

Reversed and remanded.