67 So. 246 | Ala. | 1914
In the sixth connt of the complaint appellee alleges that on the 19th day of February, 1913, it entered into a contract with the appellant, which contract was in-writing, as follows:
“New Orleans, La., Feb. 19, 1913.
“The Naylor Lumber* Company, New Orleans, La.— Gentlemen: For and in consideration of the sum of .$1.00 each and to qs in hand paid, we agree to take and they to deliver as many heart cross-ties as it is possible for them to accumulate at Moss Point, for twelve months from the above time, at the following price :
“7x9 — 8*6" ties at 52 cents.
“7x8 — 8'6" ties at 47 cents.
“6x8' ties at 44 cents.
“Upon completion of delivery of two hundred thousand (200,000) or more ties by the Naylor Lumber Company in twelve months’ time or less, we agree to pay them one cent (lc) additional on the said 200,000 ties ■on any further quantity they deliver. This agreement to ■stand good for twelve months.
“It is further agreed by the parties hereto that the ■said American Tire & Lumber Co. shall have supervision •over the inspection of all the ties delivered to them by the Naylor Lumber Company. That they shall also pay all drafts drawn by inspector of the Naylor Lumber Co. :for actual cost of ties delivered in boom or on wharf in
“American Tie & Lumber Co.,
“C. Y. Naylor, Agent.
“Naylor Lbr. C'o.,
“By W. E. Clark, Secy. & Treas.”
After setting out the contract, the count further alleges, in substance, that the appellee complied with all of the provisions of the contract up to the 19th day of March, 1913, and that at that time it stood ready and willing and offered to carry out the provisions of the contract on its part to be performed, but that on the 19th day of March, 1913, the appellant notified the appellee that it would no longer carry out the provisions of said contract, and that since that time the appellant had wholly failed and refused to comply with the provisions of the contract. Several grounds of demurrer were interposed to this count, but none of them raised the question of indefiniteness or want of mutuality in the contract. It is urged on appeal that this count does not state a substantial cause of action, and for-that reason will not support a verdict.
The contract, in short, is that the appellee would sell and deliver and the appellant would buy for a fixed price “as many heart cross-ties as it is possible for them [appellee] to accumulate at Moss Point for twelve months” from the date of the contract, which cross-ties were to be of Certain dimensions. This agreement is readily distinguishable from those where the quantity to be bought and sold is “ascertainable with reasonable certainty.” It has been correctly held that a contract to purchase the entire output of a certain mill or manufacturing plant, for a given time, at a given price, is valid; and likewise a contract to purchase all of the coal of a certain quality that might be needed for a certain
An examination of the face of the contract, without more, shows that no breach could be assigned upon it which could be compensated for in damages capable of being computed with reasonable certainty; but it contains a promise for a promise, and is executory, extending over a period of 12 months; and though uncertain in its incipiency, by partial performance on the part of the Naylor Lumber Company, it might be made certain and enforceable to that extent. The time for making payments under the contract is not clearly stated therein, but the evidence shows that the parties themselves have construed the contract to mean that payments should be made on delivery, at different times during the year.
If the sixth count of the complaint had alleged, in effect, that, prior to the time the appellant notified the appellee that it would, not further perform the contract, the appellee had accumulated at Moss Point, under and pursuant to the contract, a certain number of cross-ties of the specified quality and dimensions, a substantial cause of action would have been stated.
“Good pleading requires that the facts which constitute the cause of action relied on shall be stated in the complaint and not left in inference. Pacts, when averred, may be established inferentially from other facts shown in evidence, but this is a rule of evidence and not of pleading.” — Fidelity & Deposit Co. of Maryland v. Walker, 158 Ala. 129, 18 South. 600; Daniels v. Carney, 148 Ala. 81, 42 South. 152, 7 L. R. A. (N. S.) 920, 121 Am. St. Rep. 34, 12 Ann. Cas. 612.
These counts should contain such allegations as would show that the appellant permitted its ties to remain in the boom for more than a reasonable time after the termination of the agreement under which the cross-ties had previously been stored.
If, after notice, the appellant permitted its cross-ties to remain in the boom for more than a reasonable time, or after receiving the notice, it placed more cross-ties in the boom, it became obligated to pay three cents for each cross-tie per month so stored or permitted to remain stored. The question of reasonable time would be for the jury to determine, under the evidence in the case.
Reversed and remanded.