The opinion
On Rehearing.
The only theory on which the plaintiff could recover under the first and second counts (the common counts) of the complaint is that it sold the material to the defendant on the defendant’s order or that of her authorized agent, or that the materials furnished by the plaintiff on the assumption that the defendant would pay for it, and with a knowledge of these facts she permitted its use in her building and accepted the benefits arising therefrom.
If the materials were furnished on the responsibility of the contractor Ross, or were furnished by the plaintiff under an arrángement made between the plaintiff, Judge Simpson, and Ross, the plaintiff, to recover, must do so on one of the theories advanced by the special counts. The evidence touching these several theories of liability is in conflict, and therefore the doctrine of error without injury cannot be applied to the ruling of the court on the demurrers to the special counts.
There is nothing in the original opinion that in any way militates against the contention of appellee that an efficacious acceptance of the order may be effected by parol agreement, but to state a cause of action on such acceptance it is incumbent upon the plaintiff to show a consideration to sustain such acceptance. On the contrary, if the acceptance is in writing and signed by the party sought to be charged, section 3966 of the Code relieves the plaintiff of the burden of averring such consideration, because under the terms of the statute the acceptance, being in writing, imports a consideration. See authorities cited in original opinion. The special counts neither aver that the acceptance is in writing, nor that it was made upon a sufficient consideration, and therefore it is uncertain upon which theory the plaintiff relies, and the ground of demurrer taking the point that these special counts did not aver that the acceptance is in writing, as well as some of the other grounds, were well taken, and should have been sustained.
There is no conflict between the original opinion in this case and the holding in Charlie’s Transfer Co. v. Leedy & Co., 9 Ala. App. 652 , 64 South. 205 , and the authority there cited. The holding in those cases is that the allegations in pleadings not sworn to are not admissible as impeaching evidence, but these cases do not hold that a party sued on an account cannot show that the plaintiff has sued Some one else on the same account. In fact, in the ease above referred to, the opinion states:
“After the plaintiff had testified that he brought suit against said C. E. Brown for the same accident for which he was suing defendant in this suit and which case was to be subsequently tried, the defendant offered to introduce *162 in evidence the complaint in plaintiff’s suit against said Brown.”
While the statements in the pleadings may he the act of counsel, the responsibility of filing a suit cannot be placed upon counsel’s shoulders. This is the act of the party.
We adhere to the views expressed in the original opinion, and the application is overruled.
Application overruled.