Fail v. McRee

36 Ala. 61 | Ala. | 1860

A. J. WALKER, C. J.

The only objection taken in the defendants’ demurrer, which is applicable to the complaint as amended, is, that the agreement between the plaintiff and defendants created a partnership. The same question is also raised by the defendants’ second plea. Hence, the overruling of the demurrer to the complaint, and the sustaining of the demurrer to the 2d plea, present the single point, whether a partnership resulted from the agreement between the parties. The agreement gives to the plaintiff one-fifth of the gross proceeds of the sales of lumber, as a compensation, for the timber supplied; and, upon principles settled in Moore v. Smith,(19 Ala.774,) does not constitute the parties partners inter sese. The rulings of tbe court upon the pleadings were, therefore, correct. — Smith v. Garth, 32 Ala. 368.

[2.] It was an obligation of the defendants, under the contract, to saw all the pine timber on the plaintiff’s land, suitable for making good lumber, as soon as they could, and to saw no other timber until they had done so. There is no reservation to the defendants of a discretion, as'to whether they should comply with those obligations; nor is the duty of compliance with them made to depend upon a continuance of the partnership; nor is there anything in the terms of the contract, which absolves the defendants from their obligation upon a sale-of their mill under a mortgage. To give the contract such an effect, would be inconsistent with the mutuality of duty which it was the design of the contract to create. The obligation to allow the timber to be taken, and tbe obligation to take and saw it, are reciprocal; and, as the plaintiff had no discretion as to whether he would supply the timber, and no authority to discontinue the supply in any given contingency, so the defendants could have no discretion as to whether they should take the timber, and no legal right, in either of the contingencies above specified, to cease to take it. There being no specified time for the performance of the contract on the part of the defendants, the law implied an obligation to perform within a reasonable time, to be determined in the light of all the circumstances. When the contract says, that the defendants should perform their contract as soon as they could, it means, neither that they should perform it as soon as it was physically possible by the aid of every conceivable means promotive of expedition, nor within such time as would suit their interest, convenience or inclination ; but, within such time as would suffice for its accomplishment by the use of a reasonable investment and effort. — Garnett v. Yoe, 17 Ala. 74; Watts v. Sheppard, 2 ib. 425; Dickson v. Briggs, 12 ib. 217; Allen v. Green, 19 ib. 34; Skinner v. Bedell, 32 ib. 24; Drake v. Goree, 22 ib. 209; Adams v. Adams, 26 ib. 272; Hussey v. Roquemore, 27 ib. 281; Wolfe v. Parham, 18 ib. 441.

The refusal of the defendants to proceed with their contract, according to its requisitions, was certainly a breach of it, and gave rise to an immediate cause of action in favor of the plaintiff. — Davis v. Ayres, 9 Ala. 292; George v. Cahaba & Marion R. R., 8 ib. 234; Ramey v. Holcombe, 21 ib. 567; Fowler & Prout v. Armour, 24 ib.194. The contract on the part of the defendants was continuous in its character; it was also entire, and the performance is not by the contract divided — different parts assigned to different periods of time.

[3.] For the breach of such a contract, but one action lies, and the plaintiff must recover in a single action his entire damages. — Ramey v. Holcombe, 21 Ala. 567; Snedicor v. Davis, 17 ib. 472; Sedgwick on the Measure of Damages, 224. Notwithstanding the period ol performance had not expired at the time of the'breach of the contract, and at the time of action brought, the plaintiff must recover in the single action the damages which would result from the continued and prospective failure of performance, for he cannot bring a second action. Perhaps, if the time within which the contract might have been performed had elapsed before the trial, and the amount of performance which would have transpired each year could have been ascertained, the value of the timber and lumber which would have been consumed and sold each year, estimated as of that year, would have been adopted in determining the damages; and thus injury to either party from fluctuation in value would have been avoided. But, as this ease is not shown to have presented such features, the damages ought to be assessed upon the basis of value at the time of the breach. The authorities, which we cite below, fully sustain our propositions, as to the plaintiff’s right to recover the prospective damages, and as to the time for taking the estimate of damages. Sedgwick on the Meas. of Damages, 225-226-227-228-229; Seaten v. Second Municipality of New Orleans, 3 Ann. (La.) 44; Masterton v. Mayor, &c., 7 Hill, 64; New York & Harlem R. R. v. Story, 6 Barb. S. C. R. 419; Shaffer v. Lee, 8 ib. 412.

The measure of the plaintiffs recovery was, the profits which he lost by the refusal of the defendants to perform their contract; and those profits are to be ascertained, by deducting the value of the timber from one-fifth the value of the lumber which he would have received, if the contract, had been performed. — Ramey v. Holcombe, supra; George v. Cahaba R. R., 8 Ala. 234.

[4.] The action was brought to recover damages for the breach of the contract by a refusal to continue to perform it, and not to recover a sum of money, -which was due on account of the use of timber in the past performance by the defendants. The plaintiff’s receipt, showing a payment to him for timber which had been taken in the past performance 'of the contract, was irrelevant,.

Judgment affirmed.