107 Ala. 300 | Ala. | 1894
The defendant filed four pleas, upon which the plaintiff took issue, without special replication to either. If either of these pleas was bad when tested on demurrer, or if its defects might have been avoided by special replication, setting up other facts to that end, still, if without this, issue was taken on a defective or imperfect plea instead of forcing an issue, in the manner indicated, on the real and meritorious facts, and the facts as set up in the plea were substantially proved, — the defendants having done or suffered nothing to waive their right to a replication, the plaintiff was entitled to a judgment thereon, and the general charge if requested, might have been given on the plea. But, another well recognized principle must not be overlooked, — chat when a case is tried, as though upon an issue on which it is not triable, on the pleadings as set out, this court on review will treat the case as though the proper issue had been made up, such as the course of trial indicates was proper to have been made, and that a failure to interpose the proper plea, was waived, — as where there is no plea by
It was further shown, that defendants had shipped to plaintiffs for sale during the season 'other large lots of cotton, and there was proof tending to show that the accounts between them, except for this lot of 200 bales had been settled.
The defendants offered evidence to show that said cotton in January 1893, was worth in Falls River, Mass, lli cents per pound, to which evidence plaintiffs objected, on the ground of its being illegal and incompetent, but the court admitted it, and the plaintiffs excepted. The defendants offered, in this connection to prove the freight rate from Savannah to Falls River, but
This cotton as the evidence tends to show, was shipped by defendants to plaintiffs at Savannah to be there sold. There is no evidence, that it was in the contemplation of the parties, to have it sold elsewhere, and it is shown, that there was always a market for it in Savannah, but not at such a price as the plaintiffs, repre sen ting defendants, were willing to take for it. The proof on the part of the defendants is, that it was worth 11 cents per pound, at the time it was shipped from Savannah, and that on the part of plaintiffs, that it was not worth more than 9i cents per pound, at that time.
The rule as laid down by Sutherland, in his work on damages, on the proof of value, which seems consonant with reason and well supported by authority is, that “Where the question is, what was the value at a particular place, an l there was no ma'ket value there, proof may be given of the market value at other places, with the cost of transportation, or other facts that will enable the jury to deduce the value at the place in question. Evidence of the value at other places than the place in question is inadmissible where the evidence is clear that there is a value at that place.” 1 Suth. on Dam. 796; 1 Sedg. on Dam. 586 — 590 and notes; 3 Am. & Eng. Ency. of Law, 326. And a proper rule as settled is, that where a factor reships goods consigned to him by his principal, without the latter’s advice, and they are sold at less than they might have been sold for at the place of shipment, where, in the contemplation of the parties they were designed to be sold, he will be liable for the difference in the price for vchich they were sold and the market value of the goods at the first port. — Grieff v. Cowguill, 2 Disn. (Ohio) 58 ; 3 Amer. & Eng. Ency. of Law, 326.
It is undeniably true, also, that a factor has a general lien upon goods consigned to him and the proceeds of their sale for advances and commissions consequent upon their reception, safe-keeping and sale. — Martin v. Pope, 6 Ala. 532 ; Schiffer v. Frazier, 51 Ala. 335 : 3 Ency. of Law, 333.
Applying these principles, then, to the case in hand, and it seems clear, that proof of the market value at
In Meyer v. Morgan, 51 Miss., 21 the court says: ‘ ‘The course of business between the factor and his correspondents, implies prompt responses to business
In Powell v. Henry, 27 Ala., 612, it was held, that if an agent exceed his authority, although the principal may ratify the act, yet to avoid it, he is not obliged to give notice that he repudiates it.” In Mobile & M. R. R. Co. v. Joy, 65 Ala., 116, it was held that this was a too comprehensive statement of the law, and the better doctrine was there expressed, that in cases where the party dealing with an agent is misled or prejudiced by him, or where the usage of trade requires, or fair dealing demands, the principal, if dissatisfied with the act of the agent, and is fully informed of what has been done, must express his dissatisfaction within a reasonable time. — Burns v. Campbell, 71 Ala., 273 ; Clarke v. Taylor, 68 Ala., 461; Central R. R. Co v. Cheatham, 85 Ala., 300 ; Reynolds v. Palmer, 41 La., 425 ; Ward v. Warfield, 3 La., 648; 1 Am. & Eng. Ency. of Law; 439-40, and authorities cited.
For the errors indicated, the judgment must be reversed, and the cause remanded.
Reversed and remanded.