52 So. 433 | Ala. | 1910
This is an action by the appellants against the appellee, claiming damages for the breach of a contract by which the plaintiffs agreed to ship a soda
This case was before this court at a previous term. —Green & Sons v. Lineville Drug Co., 150 Ala. 112, 43 South. 216, 124 Am. St. Rep. 17.
It is true, as contended by the appellants, that this court has held that where a party signs a written contract, specifying that there is no verbal agreement, aside from the order, the written contract expresses the agreement, and the principal is not bound by verbal' statements made by the salesman, unless he is informed of the same before shipment (Fulton v. Sword Medicine Co., 145 Ala. 331, 40 South. 393); and in this case we will take the written order as the contract between the parties. When this case was here before, the court expressed some doubt about the proper construction of it, because it was evidently written by filling out a form, and the record did not show what part of it was printed, and what part written, hut said that “the shipment of the goods in such way that the plaintiff could not get possession of them, until he paid the stipulated price in Oxford, was evidently not in compliance with the terms of the contract.” — Page 118 of 150 Ala., page 218 of 43 South. (124 Am. St. Rep. 17).
As the case now comes before the court, those parts of the contract which were in writing are identified by being in red ink, and in print are the words, “Terms and conditions: $______ paid on signing hereof; $______upon receipt of_______” And in writing, immediately following, are the words, “This is to be delivered at this price $130.00 on arrival of goods at Line-ville.” And then follow the printed words, “until the
It is evident that the parties wrote into the contract the only agreement as to payment, which was that the goods were to be paid for when delivered at Lineville. This is not changed by the memorandum at the close of the contract, opposite the printed words: “State by what line to ship, if any special one is preferred; Ship via” — the written letters, “L. & N. Ry.,” and opposite the printed words, “Shipping address to,” the written words, “Oxford, Ala., Lineville Drug Co.” The goods were shipped to the plaintiffs themselves, at Oxford, Ala., with bill of lading which was sent to a hank in Oxford, with instructions to deliver the goods to the defendant on payment of the purchase price, $130, less the amount of freight to that point. The defendant wrote to the plaintiffs, calling attention to the terms of the contract, and stating that, as the season was already so far advanced, and it would take some time to adjust the matter, the goods would not be received at all, and thereon ensued a spicy correspondence.
The form of the pea of the general issue was proper; this being an action on the contract.
While it is true that a party may, in his contract of purchase, make a valid agreement not to countermand the order, yet a rescission of the contract because of a breach, on the part of the other contracting party, is not a. “countermand,” within the meaning of that expression.
When the plaintiffs shipped the goods to Oxford, with instructions that they were to be held there until defendant paid the purchase price, that was a violation of their contract, and the defendant had a right to rescind the contract, and, having done so, was not longer liable on it. The contract was then at an end, and
From what has been said, it is evident that there was no error in the court’s ruling overruling the demurrers to the pleas.
While Wyath J. Greene, a member of the defendant firm, was on the stand as a witness, after stating that he had gone to Oxford, and found the goods in the depot there, shipped to Robert Green & Sons, with bill of lading attached, or with notice to get the same at the bank, on payment of $130, he was asked to state whether he called at the bank for the bill of lading. There was no error in overruling the objection to this question and the motion to exclude the answer. Under the circumstances, the only proper thing for the defendant to do was to go to the bank and ascertain what the condition of delivery of the goods were. The bank was made the agent of the plaintiff! for that purpose.
Defendant’s counsel, after calling attention to discrepancies in plaintiff’s testimony, remarked, “What monumental liars these plaintiffs are!” While we do not approve of such language, yet it was a comment on the evidence, and not a statement of a fact in evidence, and does not come within the rule requiring the court to exclude improper remarks. — L. & N. R. R. Co. v. York, 128 Ala. 306, 311, 30 South. 676; Davis v. Alexander City, 137 Ala. 206, 210, 33 South. 863; Brown v. Johnston Bros., 135 Ala. 609, 613, 33 South. 683; Florence Cotton & I. Co. v. Field, 104 Ala. 472, 480, 16 South. 538.
That part of the court’s oral charge excepted to is Without error, in accordance with the construction we have given the contract, and if charge 13, given at the request of the plaintiff, is contradictory thereto, the appellants cannot complain of it, as it was in their favor.
Charge 4, requested by the plaintiffs, was properly refused, for the same reasons.
There was no error in the refusal to give charge 5, requested by the plaintiffs, as it is not in accordance with the interpretation we have given to the contract.
There was no error in the refusal to give charge 6, requested by the plaintiffs. While it is a correct general proposition that, where one party orders goods to be shipped to him, a delivery to the carrier is a delivery to the purchaser, yet that principle does not apply where there is a special contract, whereby the shipper agrees to deliver the goods to the purchaser at a certain place, and retains the title until the purchase money is paid at the point of delivery.
Charge 8 and 10, requested by the plaintiffs, were properly refused. They are misleading, and instruct the jury to find for the plaintiffs whether the plaintiffs had or had not complied with all the terms of the contract on their part.
As heretofore explained, a mere countermand, and a countermand based on a breach of the contract by the other party, are two entirely different matters.
The judgment of the court is affirmed.
Affirmed.
