128 Ala. 183 | Ala. | 1900
The 'agreement counted on in the third count of the complaint is supported by a letter written by the secretary of the Tallassee & Montgomery Railroad 'Co., the defendant, to Lutz, defendant’s traffic manager, and there is no variance between the agreement as laid in that count and the agreement supported by this evidence, nor is there other evidence in the case going to show a different agreement. That letter is as follows: “Montgomery, Ala., May 20 — 1897; Mr. R. E. Lutz, T. M., Dear Sir: — I.have agreed with Mr. Baxley to make a rate o'f $5 per oar for ties, Tallassee to Milstead. Car to contain not over 225 ties each. Mr. Baxley to load cars and to have weekly inspections and shipment's. This rate does not apply to piling unless it can be shown that same can make bridge curves safely without damage to this company’s property. Please have rate put into effect. This contract to apply to delivery of three hundred cars or over on or before 1st of July, 1898. Yours truly, (Signed) W. H. Micou, Secretary.” All the oral testimony adduced in the case on this point went in support of the agreement stated in this letter. The trial court was O'f the opinion that this agreement was unilateral and not mutual, that it did not import an obligation on Baxley, the plaintiff, to take, use and freight the cars which the. defendant thus undertook to supply at Tallassee for the transportation of railroad ties for the plaintiff to Milstead, and, hence, that the agreement on the part of defendant was without consideration and void; and upon this theory gave the affirmative
If upon another trial there should be averment in the complaint and evidence tending to prove that at the time ¡the contract between plaintiff and defendant was entered into the defendant had notice that th contract in evidence between this plaintiff and the Western Railway Company was in existence, or knew at that time that such contract was in contemplation and before default in supplying cars had notice that the contemplated contract had been made between plaintiff and the Western Railway Company, and that it, the defendant, had notice that the timbers it agreed to transport for plaintiff were to be delivered to the
It was immaterial whether the defendant had or owned any cars at the date of or during the time cov
It was also beyond the issues in this case whether plaintiff “had to turn over his contract with the Western Railway Company to Vandiver & Co. to pay them what he owed them.”
Reversed and remanded.