62 So. 254 | Ala. Ct. App. | 1913
For a statement of the nature of this case and of rulings made on some of the questions involved in it reference is made to the opinion rendered on the former appeal from a judgment granting the defendant a new trial. — Borden & Co. v. Vinegar Bend Lumber Co., 2 Ala. App. 354, 56 South. 775.
One of the claims of damage asserted in the complaint was based upon the alleged payment by the plaintiff of a stated sum as demurrage accruing as a result of a failure to deliver cargo to the vessel to which the contract for the breach of which the snit was brought bound the defendant to deliver lumber free on board; the theory being that this outlay was a result of the defendant’s failure to deliver lumber according to the
But, assuming that the question should be regarded as calling for the facts upon which the claim to demur-rage was based, the sustaining of the objection to it was not prejudicial to the plaintiffs, as subsequently the witness Avas permitted to give his version of the facts in reference to the detention of ths vessel.
The defendant’s claim of set-off was based upon the act of the plaintiff in deducting and retaining from the price due from it on a former sale of lumber by the defendant the sum of $1,000 paid as demurrage to the vessel upon which that lumber was shipped; the defendant claiming that it was not chargeable with such
Certainly, in the absence of any disclosure to the court of the particular subject in reference to which proof of the existence of a custom or usage was sought to be elicited, it was not chargeable with error in sustaining the objection to the question to the witness T. C. Borden as to his familiarity “Avith the customs Avhere the prties have a contract for shipment of lumber similar to the one betAveen your firm and the Vinegar Bend Lumber Company in respect to the payment of demur-rage, Avhere demurrage accrues against the vessel.” This question was so broad in its scope that a responsive answer to it might have included a statement as to a custom in reference to the payment of a demurrage claim accruing from a failure to provide a berth for the vessel — a matter which, as already has been shown, was covered by the agreement of the parties, and in reference to which evidence of usage or custom, varying the contract obligations of the parties, by imposing upon one of them a burden agreed to be assumed by the other, Avas not admissible. It is not error to sustain an objection to a question which may be answered as well by illegal as by legal testimony. — Beall Bros. v. Johnstone & Hammond, 140 Ala. 339, 37 South. 297.
To meet the claim of the plaintiffs that they were entitled to recover as damages for the breach of the contract mentioned in the complaint the difference between the contract price of the lumber and the higher price they paid other parties for a similar bill of lumber, the defendants offered evidence of their tender of the lumber called for by the contract in accordance with its terms; except that they required that each car load of it be paid for as it was delivered at the vessel’s side, Avhile under the contract the plaintiffs were not bound
The plaintiffs contended that there had been an accord and satisfaction of the above-mentioned demand of the defendant which was sought to be availed of by the latter as a set-off. In the opinion rendered on the former appeal the court pointedly refrained from discussing the evidence bearing upon this question which had been presented in the previous trial, the review of the ruling made on the defendant’s motion for a new trial not calling for an examination of the evidence further than was required to reach a conclusion as to whether or not it plainly and palpably supported the verdict which had been set aside. But the court stated certain rules to be applied in dealing with the proposition of accord and satisfaction as it might be presented in another trial of the case. The conclusion we have reached in regard to the evidence adduced on the trial now under review is such that it is not deemed necessary to say moré in reference to the views then expressed than that it may be that one of the propositions then stated may have gone too far. We do not now affirm that, when no receipt, release, or discharge in
This brings us to the inquiry as to whether there was any evidence having a tendency to prove that the defendant accepted the $3,937.06 in settlement of its entire claim. The circumstances of the payment and acceptance of that sum may be briefly stated as follows: When a settlement for the cargo of lumber delivered under the contract last above referred to was due, the plaintiffs’ Mobile agents wrote a letter to the defendant on which was enclosed a draft on a bank in Florida for the sum of $3,937.06, which was the balance shown by a statement or credit memorandum, also inclosed, in which the plaintiffs were charged with the amount of
It is a sufficient justification of the court’s refusal to give charge 15 requested by the plaintiffs that there was an absence of evidence having a tendency to prove that the detention or delay of the vessel for all of the period of 19]/2 days for which demurrage was paid was attributable to the failure of the defendant to furnish the cargo for the vessel with reasonable dispatch and in accordance with the contract. The charge was abstract, in that the evidence in the case was such that only a part of such delay or detention of the vessel could be attributed to any default of the defendant.
While the contract designated as “116 stump” provided for the price of the lumber “f. o. b. vessel Mobile at M. & O. docks,” before the arrival of the vessel the plaintiffs furnished to the defendant, presumably for the latter’s guidance in making delivery of lumber under the contract, a copy of the charter party for the vessel to which the lumber was to be delivered. The following was one of the provisions of this charter party: “The cargo or cargoes to be received and delivered alongside within reach of the vessel’s tackles.” From this circumstance it might have been inferred that such a delivery of the cargo by the defendant as would comply with the quoted provision of the charter party would be accepted by the plaintiffs as a compli-
What has been said disposes of the rulings complained of in the argument of the counsel for the appellants.
Affirmed.