49 So. 92 | Ala. | 1909
While the obligation to sell the culls was binding only on the defendants, it being optional with the plaintiffs to order or not as they saw fit, and would, be wanting in mutuality, if'this clause was. the entire contract, or was in no way dependent upon or collateral to the lease, in which it was incorporated, they were both embodied in the same instrument, and the agreement to supply the culls was no doubt an inducement to the plaintiff to lease the property, and the obligation to pay rent therefor was a valuable consideration, not only for the use of the plant, but for the obligation on the part of the defendant to supply the culls. —Christian & Craft Co. v. Bienville Water Co., 106 Ala. 124, 17 South. 352; Merrett v. Coffin 152 Ala. 474, 44 South. 622; Hawralty v. Warren, 18 N. J. Eq. 126, 90 Am. Dec. 613; 26 Am. & Eng. Ency. Law, 30.
Where goods are sold by description, and not by the buyer’s selection or order, and without any opportunity for inspection (inspection before purchase), there is ordinarily an implied warranty, not only that they conform to the description in kind and specie, but also that they are “merchantable” — not that they are of the first-quality, or of the second quality, but that they are not so inferior as to be unsalable among merchants or dealers in the article; i. e., that they are. free from any remarkable defect. In such sales the doctrine of caveat emptor does not apply. This is especially true when the vendor is the manufacturer, or the sale is executory for future delivery. — Benj. on Sales (7th Ed.) 685, and authorities cited in note 15; Gachet v. Warren & Burch, 72 Ala. 288. It is also settled law that, when there is a
The contract, in the case at bar, was plain and unambiguous in so far as setting out the obligation of the de
It may be true that, when the contract for the sale of a thing is silent as to time of payment, the law will ordinarily presume that it was for cash; yet this is not conclusive, and if the parties, by their conduct, treat it otherwise, they have the right to do so, and are bound by the mutual interpretation or construction given the matter. The plaintiffs, therefore, had the right to show that throughout their dealings with the defendants they had not been demanding or collecting the cash upon delivery, but had a fixed custom of striking balances and collecting 60 days after the respective deliveries. Moreover, the default assigned by the defendants in the letter of April 17,1907, as a breach in failing to pay an invoice of April 11, 1907, was subsequent to the year covered by the complaint,' to wit, from the 3d of February, 1906, and ending February 2, 1907. A breach made by the plaintiffs during a subsequent year would not excuse a default by the defendants for the previous year. The contract did not provide for any specified amount of mill or shipping culls, but only for an aggregate numbel of feet, consisting of both grades. The defendants, however, contracted to deliver mill culls at $5 per thousand, and if they fraudulently deliver them as shipping culls, and collected $10 per thousand, they breached the contract in collecting $10 for the thing they agreed to sell for $5 per thousand. It is true the evidence was not definite as to the exact number of mill culls that were passed off for shipping culls, but estimates were given, which furnished some data for the jury to assess damages; and charges E and H, requested by the defendants, were properly refused. Moreover, if the plaintiffs showed a. commingling of the culls by the defendant's
The only insistence of error, as to Shertzer’s testimony. of what he wrote defendants, is because no predicate was established for the introduction of parol evidence. Notice was. served on counsel, and one of the defendants was present ¿t the tidal, to produce the original. Ids receipt or possession was not denied. Preliminary proof of the acts regarded as necessarily precedent to the right to introduce secondary evidence of the contents of papers and documents is addressed largely to the discretion of the trial court. — 2 Elliott on Ev. § 1420. It is true an abuse of the discretion would be revisable; but we are not prepared to say that it was abused in the present instances.
There was no error in permitting the plaintiffs to show a noncompliance by the defendants with the subsequent agreement to deliver 200,000 feet of culls. It is irue the action is on the original contract; but there was proof that through subsequent negotiations plain-till's were willing to accept a delivery of said 200,000 feet as a substitute for the amount then in default, and a failure to deliver said 200,000 feet showed a noncompliance with what it was understood would be a comp! iance with the original contract.
The general rule is that, in order to impeach a 'witness by proof of bad character, the predicate is a knowledge of his character in the community or neighborhood in which he resides ; but the term “community” or “neighborhood'-’ is not susceptible of exact geographical definition, but means in a general way where the person is well known and has established a reputation. The inquiry is not necessarily confined to the domicile of the witness, but may extend to any community or society
The trial court did not commit reversible error in refusing charge 7 requested by the defendants. — Morris v. McClellan, 154 Ala. 639, 45 South. 641; Scott v. State, 133 Ala. 117, 32 South. 623; Davis v. State, 152 Ala. 25, 44 South. 561.
We are not prepared to say that the verdict of the jury was manifestly or palpably excessive, or that it was not supported bv the evidence. There was proof that the defendants were short in delivery 324,000 feet, and that the price had gone up from $2 to $4 per thousand. There was also evidence that plaintiffs’ plant was shut down about 40 days, 30 days of said shut-down being caused by want of material, and at a loss of $15 per day. There was a discrepancy in the inspection of Childs, which, considered with the foregoing items, supplied data from which the jury could assess over $1,500 damages; and this estimate as to the discrepancy in the inspection is upon the basis that the inspection was conclusive on the-plaintiffs, when as matter of law it was but an evidential or presumptive fact of the extent of the discripancy. There was also proof that more than 400,000 feet of uninspected culls had been delivered and charged for as shipping culls, when in fact they contained a large percentage of mill culls. (One witness said the percentage
The trial court did not err in refusing the motion for a new trial, and, no reversible error having been committed during the trial, the judgment of the circuit court must be affirmed.
Affirmed.