Green & Sons v. Lineville Drug Co.

43 So. 216 | Ala. | 1907

HARALSON, J.

This was an action for damages fo.r an alleged breach of contract, in refusing to accept certain goods ordered by defendant from the plaintiff. To the complaint, the defendant filed seven pleas, and the plaintiff interposed demurrers to the second, third, demurrers to the fourth and sixth pleas, but overruled fourth, fifth, sixth and seventh. The court sustained demurrers to the 4th and- 6th pleas, and overruled those to the second, third, fifth and seventh pleas. The overruling of the demurrers to' these last pleas is assigned as error. The second plea is nothing more than the general issue, and the court did not e:rr in overruling .the demurrer to it. The third plea, sets up delay in shipment of the goods, and also claims, that the plaintiff broke the contract by shipping the goods to Oxford, Alabama, with bill of lading attached, so that defendant could not get possession of same without paying the stipulated price of one hundred and thirty ($130.00) dollars in Oxford, while the written contract stated that the payment was not to be made until the arrival of goods at Lineville. The contract, which is attached as an exhibit to the complaint, shows that the defendant ordered the goods shipped to Oxford, Alabama, and the court judicially knows that Lineville, Alabama, was not on a railroad. The contract is not at all plain as to when the goocls were to be paid for. The record does not show whether the contract, which was in the form of an order, was partly in print and partly in writing, nor, if so, what part of it was in writing and what part was printed. As copied in the transcript, however, there is some indication that the instrument was at first a blank order of some kind, which was filled out. Part of it is as follows:

“Terms and Conditions.”

“$- paid on signing hereof; $- upon receipt of bill of lading: $-. This is to be delivered at this price $130.00, on arrival of goods at Lineville' -until the total sum of $-is paid. Settlement to be made by notes bearing 6 per cent, interest, and by your regular agreement securing title to your firm against all third partis, all of which' I (or) we agree to execute on receipt of bill of lading, or in default of such settlement, your firm may, at your option, declare the whole amount due and payable.”

From this somewhat indefinite and contradictory language in the contract as to terms, it is impossible to say whether or not the defendant was to pay the $130.00 on the arrival of the goods at Lineville, or whether the defendant was to execute notes for said amount on receipt of the bill of lading. The third plea sets up a delay of 17 days in making the shipment and that plaintiff shipped the goods in such a way that defendant could not get possession of same, without paying the stipulated price, at Oxford. Under the facts alleged in the plea, the court could not have held, as a matter of law, that 17 days was an unreasonable delay; but the shipment of the goods in such way that plaintiff could not get possession of' them until he had paid the stipulated price, in Oxford, was evidently not in compliance with the terms of the contract, and the plea was not subject to any of the grounds of demurrer interposed to it.

Defendant’s fifth plea is bad. None of the damages claimed therein by way of set-off or recoupment, are recoverable in a case of this kind, and the demurrers to it should have been sustained.—Ala. Chemical Co. v. Geiss, 143 Ala. 591, 39 South. 255.

The plea numbered i, at most, sets up the unfulfilled promise of the selling agent of the plaintiff that the goods would be delivered within ten days, and avers that if this promise had not been made the defendant would not have signed the contract. This plea is not subject to any of the grounds of demurrer interposed to it, and the demurrer was properly overruled.

Since the case must be reversed, it is unnecessary for this court to pass upon the sixth assignment of error.

Reversed and remanded.

Tyson, O. J., and Simpson and Denson, JJ., concur.