40 So. 1018 | Ala. | 1906
Action of assumpsit by Allen P. Howison against J. D. Elliott. There are five counts in the complaint. The first is based upon an account due on the 1st of September, 1900; the second is the common count for merchandise, goods, and chattels alleged as having been sold by the plaintiff" to the defendant on, to-wit, the 1st day of September, 1900; while the third, fourth, and fifth counts each claim damages for the breach of a sale contract alleged to have been entered into on the 13th day of August, 1900, between plaintiff and defendant. In the fifth count it appears that the contract was in writing and in the form of a proposition and acceptance.. The contract is set out in haec verba in this count, and is as follows, to-wit:
“Randolph, Ala., Aug. 13th, 1900.
“Mr. J. D. Elliott, Hickory, N. C. — Dear Sir: I will furnish you three hundred (300) round pine pilings, .10 inches at small end and forty (40) feet long, at four dollars ($4.00) each f. o. b. cars on Sou. Ry. Co.’s tracks, and you to pay me for them as delivered.
“Yours truly, Allen P. Howison, Rrand.”
“Randolph, Ala., Aug. 13th, 1900.
“Mr. Allen P. Howison, Randolph, Ala. — -Dear Sir: I accept your proposition of this date to furnish the three hundred pilings-f. o. b. cars on Sou. Ry. track at four dollars ($4.00) each. The above pilings to be ten (10) inches in diameter at small end and to be practically straight. To be paid for as delivery is made.. Yours truly, J. D. Elliott. H. T. Elliott. Ship to Southern - Railway Co., care J. D. Elliott, Mobile, Ala.”
There can be no doubt that the proposition and acceptance constituted a valid executory contract of sale between the parties. — Berry v. Fall & Duxberry, 54 Ala.
The question of importance here is, are the third and fourth pleas well pleaded as pleas of rescission with respect to the specified grounds of the demurrer leveled against them? In executory contracts of sale, “when there is a warranty that has been broken, or when the article tendered in performance of the contract does not conform to the stipulation, either of these furnishes ground of defense to any suit by the seller brought to enforce the contract.” — Eagan Co. v. Johnson, 82 Ala. 237, 2 South. 302; Hodge & Williams v. Tuft, 115 Ala. 366, 22 South. 422; Benjamin on Sales (6th Ed.) § 888;-3 Parsons on Contracts (7th Ed.) bottom of page 222. Generally where one fails to perform his part of the contract, or does an act which shows conclusively that he did not intend to perform his undertaking, the law Avon Id authorize the other party to put an end to the contract. — 2 Parsons on Contracts (7th Ed.) p. 678; Drake v. Goree, 22 Ala., on page 415. But to effect rescission the party seeking the advantage of it must act with promptness and Avithin a reasonable time. In this respect, if goods have been shipped to him, Avhicli, on examination, do not conform to the stipulation, he must return or offer to return them. “An offer to return the chattel in a reasonable time, on the breach of warranty, is equivalent in its effect upon the remedy to an offer accepted by the seller, and the contract is rescinded.”— Burnett v. Stanton & Pollard, 2 Ala. 182; Sheffield Land Co. v. Neill, 87 Ala. 158, 6 South. 1; Carmelich v. Mims, 88 Ala. 335, 6 South. 913; 3 Parsons on Contracts (7th Ed.) marg. p. 208.
While it is made, to appear by the pleas that the de
The second ground of the demurrer is addressed to the pleas as answers to each, count of the complaint. It is in this language: “And the plaintiff demurs to each of said pleas, pleaded to each count of the complaint, because it does not appear from the said plea that the plaintiff failed or refused to deliver to the defendant the piling provided for by the contract within a reasonable-time from the date thereof, or has promised or contracted to deliver the same within any time specified in the contract.” Where a contract is silent as to the time within which its conditions or stipulations are to be performed, time is not ordinarily deemed to go to the es
Other points have been made in the argument with respect to the insufficiency of the pleas, but they have no support in the grounds of demurrer assigned, and we are not authorized to consider defects not presented by the demurrer. The pleas make clear the fact that the only cause of action the plaintiff has against the defendant is founded on the contract mentioned in the pleas. It cannot be said that the pleas do xxot deny liability, or that they do not aver a breach of the. contract on the part of the plaintiff. . They expressly aver facts which show there was no delivery of any of the piles coixtracted for. Hence it cannot be said that they confess the matters alleged in either the second or third counts of the complaint.. Upon these considerations it must be held that the first axxd fourth groxxnds of the demurrer were not well assigxxed. The demurrer to the fourth plea should have been overruled.
While the delivery to a common carrier under contracts of sale like the one here involved is deemed prixxxa facie a delivery to the consignee, and the carrier thxxs becomes, impliedly, the agent of the consignee to receive and transport the goods at his risk, yet, if goods of a particular description are ordered to be sent by a carrier, the buyer may receive them to see whether the goods
Where goods received are not according to the contract, it is the buyer’s duty, within a reasonable time, to notify the vendor of that fact, or he may be considered as accepting. But the notice to the vendor need not necessarily point out the defects in the goods, especially when they may already be known to the vendor. — Benjamin on Sales (6th Ed.) p. 690, American note, and authorities cited there. The evidence without conflict showed that a car of 32 piles which did not correspond with the particular description of the piles ordered by the defendant were delivered to the Southern Railway at the point whence the piles were to be shipped on the 22d day of August, 1900, and the car arrived at Mobile on the 25th of August. On the evidence (which avüI be set out in the report of the case) we think the question of acceptance vel non of the first car of piles Avas one for the jury under appropriate instructions by the court. With respect to the piles which plaintiff’s evidence tended to show were shipped after the first shipment, it cannot be reasonably said that the plaintiff was entitled to the affirmative charge. The court erred in giving the
The contract stipulates that the piles Were to be delivered f. o, b. cars on Southern Railway tracks and were to be paid for as delivered. They were to be shipped to the Southern Railway Company, care of J. D. Elliott, Mobile, Ala. On the trial the question as to whose duty it was to furnish the cars, the buyer’s or seller’s arose, and the defendant asked the court in writing to instruct the jury that it was the duty of the seller to procure the cars upon which the piles were to be delivered. In the case of Sheffield Furnace Co. v. Hull Coal & Coke Co., 101 Ala. 446, 14 South. 672, this court held that the courts take judicial knowledge of the fact that the letters “f. o. b.” cars, as they are used in contracts of sale, mean “free on board” the cars, and that this means free of expense to the buyer. But the preci.se question now presented has not been definitely determined by this court, although the reason employed in the case last cited would seem to lead to a conclusion in support of defendant’s contention that the duty rested upon the plaintiff to procure the cars. . Appellant’s counsel have cited the cases of Boyington v. Sweeney, 77 Wis. 55, 45 N. W. 938, and Chicago Lumber Co. v. Comstock, 71 Fed. 477, 18 C. C. A. 207, which hold that it is the duty of the purchaser under such contracts to procure the cars. The Pennsylvania court also seems to have held against the appellant’s contention, as may be seen by examining the cases of Kunkle v. Mitchell, 56 Pa. 100, Dwight, v. Eckert, 117 Pa. 508, 12 Atl. 32, and Hocking v Hamilton, 158 Pa. 107, 27 Atl. 836. See, however, Miller v. Seamon, 176 Pa. 291, 35 Atl. 134; Baltimore & L. R. Co. v. Steel Rail Supply Co., 123 Fed. 655, 59 C. C. A. 419. The Supreme Court of Wisconsin has repudiated the ruling made in the latter case of John O’Brien Lumber Co. v. Wilkinson, 117 Wis. 468, 94 N. W. 337, and in the still later case of Vogt v. Shienebeck, 100 N. W. 820, 67 L. R. A. 756. 106 Am. St. Rep. 989. In the case last cited, the court, in an opinion by Marshall, J., after reviewing the former decisions on the subject, .reached the conclusion that the letters “f. o. b.”
What constitutes a material part of a contract is a question of law for the court. Charges 2, 3, and 4, requested by defendant, [were each defective, in that they each referred the question to the jury for determination.
It was open to the jury to find from the evidence that some of the piles were accepted by the defendant. If they were, the plaintiff was entitled to recover their value. Charg 5 pretermitted this proposition, and was for that, if no other, reason properly refused.
There was no evidence that the piles were to be delivered in 10 days from the 13th of August, and charge 6, requested by' defendant, for hypothesizing this fact, was properly refused. The defendant sought to make proof of the fact, but was not allowed by the court to do so.
Charge. 7 was properly refused. It invaded the province of the jury.
There was evidence from which the jury might have
If the court erred in sustaining the objection made by the plaintiff to defendant’s question to plaintiff, “Did you not swear in that paper [referring to depositions of plaintiff that Avere taken in the case] at that time that you had about 214 pine piling 10 inches in diameter?” It was error without injury, as the paper (the deposition ) Avas subsequently introduced as a part of the evidence Avithout objection.
The only relevancy the fact that defendant’s witness Wooley made a contract Avith defendant to furnish defendant Avith poles could have had Avas Avith respect to Wooley’s interest as a witness. The court erred in alloAving the. question, “With what percentage of heart in it?” propounded to Wooley. The matter called for was irrelevant.
We think it Avas both relevant and material to sIioav that the plaintiff stipulated to deliver the piles Avithin 10 days. If he did so subsequent to the execution of the contract in Avriting, which contained no stipulation as to tiim», it Avould be binding on the plaintiff. Parties may modify or add to a written contract by a subsequent parol agreement. The question relating to this matter Avas leading, but the plaintiff, by making specific objections, must be held to have waived all others. The court erred in sustaining the objections made to the question. — Robinson v. Bullock,, 66 Ala. 548.
It Avas competent to shoiv by the Avitness H. T. Elliott the circumstances attending the unloading of tlie car load of piles in Mobile, and in this connection that tlie railroad company required the piles to be unloaded. Such evidence was relevant and material with respect of acceptances Ami non of the car of piles. The question calling for this character of evidence from Aiitness H. T. Elliott Avas leading, but this objection was Avaived by the specific objections assigned to the question.
Reversed and remanded.