16 Ala. 748 | Ala. | 1849
This was an action of assumpsit brought by the plaintiff in error against the defendant, upon a contract alleged to.have been entered into between them, by which the plaintiff agreed that he would deliver to the defendant, at the Rail Road Ware-house in Montgomery; fifty bales of ginned cotton of the plaintiff’s first gathering and packing from his crop then growing, to be delivered by the first day of November then next (1847,) and that the defendant should then and there accept said cotton, and pay said the plaintiff therefor ten cents for each and every pound thereof.
The declaration contains three counts, the last of which was however abandoned upon the trial in the court below. The first count, after setting out the contract as above stated, and avering that the mutual promises of delivery of the cotton on the one hand, and the payment of the money on the other, formed the consideration to support the same, contains tne further averment that afterwards the parties mutually agreed to postpone the time for the performance of the said contract from
Upon the trial, the plaintiff took a bill of exceptions, by which it appears that he introduced evidence, tending to prove a contract made between the plaintiff and defendant in September or October 1847, by which the plaintiff agreed to sell and deliver to defendant, at the Rail Road Wave-house in Montgomery, by the 1st November 1847, fifty bales of cotton of the first picking and packing of his then growing crop, and said defendant, upon the delivery thereof, agreed to pay the plaintiff the sum of ten cents per pound therefor. It was also shown that about the time for the delivery of the cotton according to the terms of the above contract, the plaintiff and defendant had an interview, immediately after which they came before two persons, who were examined as witnesses in the court below, when ihe plaintiff observed that the time for the delivery of and payment for the cotton had been prolonged until the middle of January, to which the defendant assented. Plaintiff also said that he and defendant had agreed that their contract should be reduced to writing. The defendant asked who should draw up the writing. Plaintiff replied that Knox (one of the witnesses) should, and that defendant could sign it and leave it with him, Knox, and plaintiff would sign it on his return from Montgomery. Knox asked how the contract should be drawn up. Plaintiff replied — “ state what the contract is, — fifty bales of my first picking to be delivered in Montgomery by the middle of January, and defendant to pay for it ten cents per pound.” It appeared, however, that the agreement was never reduced to writing. The plaintiff also showed that he had, at the time last agreed on, viz. the 15th January
1st. .That if they believed from the evidence that there was a contract between the plaintiff and the defendant, by which the plaintiff was to deliver to the defendant, at the Rail Road Ware-house in Montgomery, fifty bales of cotton of his first picking and packing, by a certain time, and that afterwards the parties agreed to extend the time of delivery and payment to the 15th January 1848, and also agreed at the time of such extension that the whole contract should be reduced to writing, merely for the purpose of having more certain evidence of what the contract was, and not as a condition, without the performance of which the contract was to be inoperative, and if they should also believe that the plaintiff, on the 15th January 1848, tendered the cotton to the defendant and he refused to accept and pay for it, — then the plaintiff was entitled to recover.
2d. That if the jury should believe from the evidence that there was a contract between the parties, by which the plaintiff agreed to deliver to the defendant, at the Rail Road Warehouse in Montgomery, fifty bales of cotton of his first gathering and picking, at a certain time, and that afterwards the. parties agreed to extend Ihe time for the delivery of the cotton to the 15th January 1848, and also agreed at the time of such extension that the whole contract should be reduced to writing, but which writing was not executed as agreed on, and that said defendant afterwards, on the 15th January 1848, with a knowledge of the fact that the contract had not been reduced to writing as agreed on, acknowledged to the agent of the plaintiff the validity of the previous contract, that this might
These charges the court refused to give, and the plaintiff having duly excepted to such refusal, now assigns the same for error in this court.
There can be no doubt, but that if a contract was entered into, such as is described in each of the two first counts in the ■declaration, and the plaintiff has tendered a compliance on his part as stated, he is entitled to his action; since the law is settled that reciprocal promises, simultaneously made, to sell and deliver goods on the one side, and to pay for them on the «other, are valid. — Story on Con. 82, § 12; 8 Johns. Rep. 304. This position is not gainsaid by the counsel, but they insist that this contract was not complete, since it was agreed that it should be reduced to writing, which was never done. The ■proof conduced to show that a valid contract for the sale and delivery of the cotton, on the 1st of November 1847, existed verbally at the time the parties agreed to postpone the time for performance to the 15th day of January 1848. After this agreement to postpone, the contract in legal effect became one for the delivery of the cotton and payment of the money on the day last stipulated, and might well be declared on as such. This the second count does. If it was a part of the contract that it should not operate until reduced to writing and signed by the parties, then it would be incomplete until the performance of the condition, upon which it was to take effect, and as it would remain incomplete until the condition was complied with, the parties respectively would retain until then the locus 'penitentiie) and might abandon it, or refuse to complete it.
Whether, by the agreement of the parties, the contract was complete, or its consummation depended upon some subsequent act. to be performed by them respectively, was, under the circumstances of this case, as presented by the record, a question of fact, which should have been left to the jury. Did they make a verbal contract for the sale and delivery of the cotton on the 1st November 1847? When the time for per
As the view we have taken of the law applicable to the first charge is decisive of the case in this court, it is unnecessary to notice the points raised upon the other, further than to state that although the statement made by the defendant to the agent of the plaintiff, that he ought to let him off from the contract, was a circumstance tending to show either that he did not
We do not think the charges were abstract, as insisted on by the defendant’s counsel. The evidence was that the parties agreed to reduce “ the contract to writingIhe charge asked for assumed, the evidence tended to show that the whole contract was to be afterwards put in writing. This is but a verbal criticism, and too refined to furnish any substantial ground for refusing the charge.
Judgment reversed and cause remanded.