69 So. 964 | Ala. | 1915
(1) If there is any evidence which tends to establish the plaintiff’s cause, the trial court should not withdraw the case from the jury by giving the affirmative charge. —Tober v. Pioneer Min. Co., 166 Ala. 517, 52 South. 86; Shipp et al. v. Shelton, infra, 69 South. 102; McCormack v. Lowe, 151 Ala. 313, 44 South.; M. J. & K. C. R. R. Co. v. Bromberg, 141 Ala. 258, 37 South. 395; Amerson v. Corona Coal. & Iron Co., infra, 69 South. 601.
Where there are two versions of a contract in evidence, charges requested by one party to the suit, based cm his version alone, are properly refused. — Bates v. Harte, 124 Ala. 427, 26 South. 898, 82 Am. St. Rep. 186. The general , rule is that the affirmative charge should never be given when there is a conflict in the evidence as to any material fact in issue, or when the evidence is open to reasonable inference of a material fact
A careful consideration of the conflicting tendencies of the evidence convinces us that the questions involved under the issue of fact presented should have been submitted to the jury under proper instructions.
In Ray v. Fidelity-Phoenix Fire Ins. Co., 187 Ala. 91, 95, 65 South. 536-538, the opinion, discussing the principle just here being treated, proceeds as follows: “It may be assumed that this agent’s express authority was limited to the mere making of an investigation and a report of the result. But plaintiff had no notice of that limitation, and this agent’s authority as to third persons was governed by the nature of the business intrusted to him. His acts, within the usual scope of the business intrusted to such agents, provided plaintiff acted in good faith and was not guilty of negligence, bound his principal despite his private instructions, for the authority of an agent, as to those with whom he deals, is what it rehsonably appears to be.”
On receipt of the telegram from the defendant, if the plaintiff acted thereon in good faith, and was not guilty of negligence, then he could not be prejudiced by the private instructions of the principal to the agent, in the absence of knowledge that the agent was exceeding his instructions. — Syndicate Ins. Co. v. Catchings, 104 Ala. 176, 16 South. 46. The telegram was a reply to a letter from plaintiff to defendant, and was signed by the defendant. The defendant corporation could act in such matters only through its agent. The telegram was sent to the plaintiff in the due course of business, and it related to the delivery of
The measure of damages in such cases is the difference between the agreed price and the market price at the time and place of delivery, with interest. — 2 Sedg. Dam. (8th Ed.) § 94; 2 Benj. on Sales (4th Ed.) 973; 2 Addison on Con. § 589; 2 Greenl. Ev. § 261; Young v. Cureton, 87 Ala. 727, 6 South. 352; Bell v. Reynolds, 78 Ala. 511, 56 Am. Rep. 52; Harralson v. Stein, 50 Ala. 347; Penn. v. Smith et al., 104 Ala. 445, 18 South. 38; Austin et al. v. Beall, 167 Ala. 426, 52 South. 657, Ann. Cas. 1912A, 510; Craig & Co. v. Pierson Land Co., 179 Ala. 535, 60 South. 838; Gooden v. Moses Bros., 99 Ala. 233, 13 South. 765; Gwin et al. v. Hopkinsville Milling Co., 190 Ala. 346, 67 South. 382; Hopkinsville Milling Co. v. Gwin et al., 179 Ala. 478, 60 South. 270; Scruggs v. Riddle, 171 Ala. 350, 54 South. 641; Davis v. Adams, 18 Ala. 264; Roehm v. Horst, 178 U. S. 1, 20 Sup. Ct. 780, 44 L. Ed. 953; Barrow v. Arnand, 8 Q. B. 604-609.
In Gwin et al. v. Hopkinsville Milling Co., supra, this court held that, where a buyer repudiates the contract and refuses to receive the goods, a resale is not necessary to fix the buyer’s liability, but a resale in the market may be made, to ascertain the damages.
For the error of the court in giving the affirmative charge at defendant’s request, the judgment is reversed, and the cause is remanded.
Reversed and remanded.