73 So. 938 | Ala. | 1916
Without undertaking a detailed discussion of the evidence, we think it was sufficient to justify the jury in finding: (1) That plaintiff was able, ready, and willing to deliver to defendants at the Mobile wharf on January 26, 1914, the first installment of 833 logs, and that defendants wrongfully declined (on January 24th) to receive them at any time, present or future. (2) That on or about February 2d plaintiff actually offered to make the delivery of the first installment, and defendants wrongfully refused to accept it. (3) That on February 23d plaintiff was able, ready, and willing to deliver the second installment of 833 logs to defendants’ designated steamer Asian, and so notified defendants-and the ship’s agent; that the ship was not then ready to receive them and did not announce its readiness until several days later; that defendant was under the duty of inspecting the assembled logs and aiding plaintiff in the separation of the specified logs to be accepted before their actual delivery to the Asian alongside ship; that defendant prevented such separation by refusing or delaying the inspection; and that defendants wrongfully refused in writing, on February 26th, to
It is, however, insisted by defendants that the evidence does not support a material allegation of the first count of the complaint, viz., “that plaintiff has complied with all of the provisions of said agreement on its part;” and hence that, as to the first count, defendants were entitled to the general affirmative charge as requested.
(1, 2) The obligation of plaintiff to actually deliver was of course contingent upon the willingness of defendants to accept; and, if acceptance was refused as to the first installment, plaintiff nevertheless fully performed its obligations to deliver by offering to deliver. So, plaintiff’s obligation to deliver the logs “f. a. s.” — that is, free alongside the ship — was expressly contingent upon the designation by defendants of a ship to receive, and its readiness to receive, the logs at or about a specified time and place. As to the first installment, the evidence tended to show literal compliance by plaintiff “with the provisions of the agreement,” and therefore, under the first count, plaintiff could recover pro tanto, regardless of the second and third installments. The instruction requested should have been limited to those installments, and not extended to the entire contract, and was therefore properly refused. Had the logs been deliverable in a single installment, the general averment of performance of all the provisions of the contract by plaintiff could not be met except by showing a tender of all the logs. But where there are separate deliveries to be made of separate and distinct installments, the rule is obviously different, and the plaintiff may recover pro tanto for each separate and complete performance on his part, whether a separate breach is assigned as to each delivery or not. Any other rule would rest upon the sheerest technicality.
“No delivery having been made by you we herewith have to ask you to consider delivery of the first installment * * * as canceled. We now ask for delivery of the second installment,” etc.
Giving to this language its ordinary meaning, it is clear that it was a declaration of, and not a request for, cancellation. It called for no reply, and plaintiff’s failure to answer it cannot support the inference of plaintiff’s assent to defendants’ repudiation of their obligation. Hence defendants’ requested instruction that, if plaintiff assented to or acquiesced in the cancellation of the order for this installment, defendants were not liable thereon — was properly refused as abstract, since its hypothesis was without support in the evidence.
(4) Refused charges 4, 9, 11, and 15 forbid a finding for plaintiff under the second count of the complaint, on the hypothesis of plaintiff’s inability to deliver the specified logs on February 27th (the second installment), or of failure to prove the allegation that the ship’s agent had informed plaintiff that the ship would not be ready to receive delivery before that date.
If for no other reason, these charges were properly refused because they ignored plaintiff’s right to recover under the first assignment of breach relating to the first installment. Where several breaches are assigned in one count, the plaintiff may recover upon any one without proving the others; and as to the first breach it is clear from all the evidence that plaintiff was entitled to recover.—Hallett Mfg. Co. v. Curjel, 191 Ala. 372, 67 South. 995.
(5) On the former appeal, dealing with the allegations of the second count of the complaint, we ruled that defendant’s failure to call for delivery of the first installment by January 1st authorized plaintiff to make that delivery at any time down to April 1st. We of course did not mean to hold that plaintiff could not bind itself by accepting an order to deliver that installment on January 26th. That question was not before us. It is now urged that the plaintiff did waive the provision as to the call for the first installment, by accepting the order for delivery on January 26th. We think the evidence does not show such a waiver, but,
(6) It is complained with much earnestness that our former ruling as to plaintiff’s latitude in offering to make this delivery is based upon a misunderstanding of the purpose and meaning of the contract, and leads to intolerable inconvenience and injustice to defendant. The obvious answer is that, having deliberately-violated its obligation with respect to calling for the first installment, and having deliberately repudiated its own tardy call therefor, defendants are in no position to complain of injustice or of self-imposed inconvenience. The contract expressly provides that, if no ship is in port ready to receive an installment at any authorized date of delivery, defendants shall nevertheless accept and pay for the logs, and, pending shipment, shall bear the expense of holding and handling.
Manifestly, a tender of delivery “f. a. s.” is here required only when defendants have designated a particular ship to receive the tender, and the designated ship is at the wharf ready to accept delivery. Otherwise, plaintiff’s obligation is no more than to seasonably notify defendants that it has the installment ready for delivery at the authorized time.
The trial judge did not err in instructing the jury, under the evidence presented, that plaintiff was authorized to deliver the first installment at any time before April 1st.
(7) With respect to the delivery of the second installment required by defendants to be made to the ship Asian on February 23d, the evidence shows that plaintiff had the specified logs ready for delivery, subject to inspection and approval by defendants’ inspector, before the ship arrived in port on February 18th; and plaintiff’s evidence tends to show that the uniform course of dealing between these parties for years had been for defendants’ inspector to inspect the logs and assist plaintiff in the separation from the whole lot of those logs approved by the inspector as meeting the specifications, and that this was done before the tender of delivery “alongside the ship.” The testimony of defendant, H. Curjel, is a practical admission of this
It is clear that if the ship was not ready to receive delivery until February 27th, plaintiff was not and could not have been in default until after that date. Under the evidence this was a question for the jury. So, also, defendants’ repudiation of the contract on February 26th relieved plaintiff of the duty of offering delivery “alongside the ship.”
(8) Defendants did not object to plaintiff’s proof either of a general custom of inspection by the purchaser of logs before delivery alongside the ship, or of the actual conformity of these parties to that custom by their uniform course of dealing prior to this occasion. But the evidence in this behalf was admissible, whether as showing that defendants knew of the general custom, or that such a custom was actually followed in the individual dealings between these parties.—Cole Motor Co. v. Tebault, 196 Ala. 382, 72 South. 21; Baker v. Troy Comp. Co., 114 Ala. 415, 21 South. 496.
(9, 10) If defendants’ neglect to inspect the logs preliminary to their separation and tender alongside the ship prevented their timely selection and delivery to the ship by the plaintiff, it cannot be said that plaintiff was by reason of such delay in default as to its obligations. Nor can it be said, under such circumstances, that plaintiff’s offers to make delivery of the logs were unavailing, merely because the uninspected masses of logs contained some logs not in conformity with the specifications of the contract, or because the task of inspection and appropriation would require a day or two for its completion.^
(11) The rule that the legal title to the logs could not pass • to defendants until their appropriation to the contract by separation from a larger mass, or otherwise, does not deny the sufficiency of an offer to deliver where the duty of inspection and selection rests in whole or in part upon the buyer, as the evidence tends to show was here the case. Nor is it correct to assume, as do counsel for appellants, that the rules- of precision and promptitude applicable to tenders of money can always
(12) Recurring to a statement on the former appeal, that though the stipulated time for delivery was February 23d, “a delivery to the steamer on February 27th would under all the circumstances have constituted, prima facie, a substantial compliance with the contract” — counsel for appellants invite a review and rescission of that conclusion. We think it clear, however, that unless sheer technicality is to be preferred to manifest justice, the stated conclusion is sound. The date stipulated was obviously to meet the presence and requirements of the ship, and if actual delivery could have been made to the.ship before it sailed and while it could and would have received the logs in cargo, there was certainly no substantial breach of the contract, for there was no injury to the buyers, and the purpose of the stipulation was accomplished; at least so far as appears. If such a delay caused any material expense or loss to the buyers, the seller would of course be answerable therefor.—Halstead Lbr. Co. v. Sutton, 46 Kan. 192, 26 Pac. 444. But this is not to deny that in such cases time may be, and usually is, of the essence of the contract.
(13) The evidence shows that the logs here concerned were for export, and that the particular sizes specified were used in foreign countries for particular purposes; and the evidence tends to show that these kinds and sizes were not “commercial logs”— that is, logs for which there was a general market for sawmill purposes.
In order to recover more than nominal damages, plaintiff had the burden of showing the market value of such logs at Mobile ; or else, in connection with proof that there was no prevailing market value, he might show their actual selling value at the
(i.4, 15) The statement by plaintiff’s witness Tallett, that “I couldn’t get any market whatever for them [i. e., the rejected logs] I went to all of the exporters in Mobile,” was relevant to the question of the existence of an export market in Mobile at the time, and was competent evidence to disprove itj This is not analogous to proving a composite fact by a particular instance. On the contrary, it is disproving a composite fact by disproving one of its essential elements.
It cannot be said that there is a market price for any commodity unless there are buyers able and willing to purchase that commodity when it is offered for sale; at least in ordinary quantities. So it is futile to speak of a prevailing market price as a basis for the estimation of damages in a case like this, if the logs were offered for sale to those in the business and none of them were willing to buy. It may be that the witness’ statement was objectionable as embodying his conclusion merely; if so, the objection was not pointed out to the trial court, and is not now available.
(16) As to the written specifications showing the number and dimensions of the 2,500 logs assembled by plaintiff at the Mobile wharf, it may be conceded that some of the logs included therein were not applicable to the contract, and that, as to these logs, the specifications were irrelevant to the issues. But the specifications were offered as a whole, and it was defendants’ duty to point' out and move to exclude the irrelevant parts, and the objection in solido was properly overruled. That the specifications relating to the apt sizes were relevant to the issues is not subject to doubt. The only objection to the whole was that they were “irrelevant, immaterial, and incompetent;” and hence, even if the specifications were objectionable in form, as being secondary evidence, or hearsay, or for other reasons, the grounds of objection presented by defendants were not apt, and the document was admitted without error.
(17) It is not proper form in the examination of a witness to. ask him “what he would say” with regard to a certain statement made by another witness in the case. He should be interrogated as to the fact itself, and not be requested to comment on the statement. The question to the witness Curjel was properly excluded. Moreover, he discussed the market conditions
(18, 19) It was not, competent for defendants’ witness Le Blanc, the agent for the steamship Asian, to state on cross-examination that Hallett told him “he thought Curjel was going to fall down on his engagement with him.” It was but hearsay, and was not rendered admissible by anything the witness had stated on direct examination, nor for any of the collateral purposes to which cross-examination may in such cases be directed. But the record does not show any motion by defendants to exclude the statement; and their preceding objection to the witness’ unfinished statement, that “Mr. Hallett came in and told me that Mr. Curjel — ” does no reach the later statement complained of, which was in reply to a new request by plaintiff’s counsel, viz., to state the circumstances under which Hallett was asking thq witness to insist upon Curjel’s letting him have the logs for cargo. Moreover, defendants’ general objection to “what Mr. Hallett might have told the witness,” might be properly overruled by the judge in advance of any showing as to what statement of Hallett’s he was about to narrate; for, having in view the common relations of Hallett and Le Blanc to Curjel, the question as to Hallett’s readiness to deliver the logs alongside the ship, and the ship’s unreadiness to receive them before February 27th, the trial judge could not presume that anything that Hal-lett said to Le Blanc was inadmissible in evidence; and, when its inadmissibility became apparent, a motion should have been made for its exclusion.
The recitals of the bill of exceptions do not put the trial judge in error as to the reception of this testimony.
The trial court overruled defendants’ motion for a new trial, and this action is the basis for the last assignment of error.
(20, 21) The chief grounds of the motion — the only ones we need now consider — are that the verdict is excessive, and that it is contrary to the evidence. It seems sufficiently clear, as affirmed in the brief for appellants, that the jury took the aggregate of the superficial feet of the'2,500 logs as shown by the written specifications, and deducted the aggregate of 462 logs actually delivered to defendants under an independent agreement between the parties, and awarded damages on the basis of 111,164 feet; and that, on this basis, they calculated the damages at $32.50 per thousand — this being the differerence between
The amount of the verdict is alleged to be erroneous upon five distinct considerations, viz.:
(1) Contrary to plaintiff’s duty to minimize his damage as far as it reasonably could, it proceeded to collect and transport to Mobile 1,167 of the 2,500 logs, after defendants had notified plaintiff they would accept no further deliveries.
(2) The jury failed to consider that plaintiff was not put to the expense of actually handling the logs from the docks or barges to the ship’s side, thereby reducing the amount of recoverable damages.
(S) Many of the assembled logs would probably have failed to pass inspection, and só would have been a loss to plaintiff in any event. ■
(4) Defendants offered to take, independently of the breached contract, 1,250 logs of certain sizes, and 980 of the rejected logs could have been appropriated by plaintiff to this new offer at the contract price, thereby avoiding loss as to that number of logs; but plaintiff culpably failed to thus dispose of more than 462 logs, and cannot recover*as for the remaining 518.
(5) The great and overwhelming weight of the evidence shows that, at the dates when the several installments were rejected by defendants, the market value of the logs in Mobile was from $25 to $37.50 per thousand, instead of $10, as found by the jury.
We dispose of these contentions as follows:
(1) It does not appear that plaintiff procured or placed in transit the last lot of logs after February 26th, the date of defendants’ rescission.
(2) It does not appear what amount, if any, was saved to plaintiff by the avoidance of actual delivery at the ship’s side. Conceding, without deciding, that such a saving, if any, ought to be considered by way of abatement in the computation of damages, the burden was manifestly upon defendants to supply the data for the jury, which they did not do.
(3) In the absence of an inspection by defendant, there was no evidence before the jury to show what logs, if any, would have been rejected for nonconformity to specifications; and,
(22) (4) The specifications in evidence show that when defendants finally repudiated the contract on February 26th, and thereafter plaintiff had on docks or barges 980 logs of the specified kind between 8 and 12 inches in diameter. Defendants then offered to take 1,250 of these small logs, “f. a. s.” at the contract price, and plaintiff agreed to sell them as many as they would take. Plaintiff actually delivered, and defendants received and shipped, 462 of them.
We think the evidence is clear and conclusive to the effect that plaintiff’s failure to deliver the remaining 518 logs under this order was due to its own negligence or indifference, and the jury should have deducted this number from the total or rejected logs, as a basis for estimation of damages. True plaintiff’s manager said, during his cross-examination, that delivery was not made because “there was no room, and the ship couldn’t take them.” But this was clearly an afterthought, as he had already said that the reason was that they had to pick over 2,500 logs of mixed sizes; and his inspector, Evans, who was in charge of all the logs, stated that:
“The ship called for the cargo, and the reason that we couldn’t let her have it was that we * * * didn’t have time to go through them.”
But the undisputed evidence was that the ship was loading cargo for at least a week longer, and that a day and a half was sufficient time to make the separation. It was plaintiff’s affirmative duty to exercise all reasonable diligence in the matter of selecting and delivering the logs at the ship’s side, and this it confessedly failed to do. We do not overlook the excuse offered for this failure, but it is wholly and palpably insufficient.
The jury had before them all the data necessary to calculate the superficial footage of the additional 518 logs. Our calculation shows it to be. 16,551 feet, which, at $32.50 per thousand, with interest for 13 months, rendered the verdict excessive by $584.50. Upon the entry of a remittitur of this amount by plaintiff in this court within 30 days, the judgment will be corrected and affirmed; otherwise it will be reversed and the cause remanded for another trial.
(5) With respect to the jury’s finding that the market value of the rejected logs was $10 per thousand, a thorough examina
(23) It may be conceded, as urged by appellant, that market price or value is ordinarily a- matter of fact and not of opinion merely.—L. J. C. Co. v. Lischkoff, 109 Ala. 136, 141, 19 South. 436; Poirier Mfg. Co. v. Griffin, 104 Minn. 239, 116 N. W. 576. Hence where competent witnesses testify to the existence of a known and definite price prevailing in the market as the expression of the commercial value of a commodity, the jury is bound by their testimony if it is believed, and cannot substitute their judgment for that of the witnesses.
But we think the witnesses in this case were obviously giving their judgment of value, and not their knowledge of a known prevailing price or value. Certainly the range of alleged market values — between $25 and $37.50, as placed by the several witnesses — is not consistent with the theory of any prevailing value. Indeed, the jury might well have found that at the dates in question there was no actual market in Mobile for these logs, or at least that it was precarious and subject to various contingencies.
So while the discrepancy between the contract price of $42.50 and the plaintiff’s valuation of $10 may seem prima facie incredible, yet there are circumstances which tend to reasonably explain and justify it: notably, that the export market for this class of non-commercial logs was then quiescent, there was no domestic market for them, and they were subject to speedy injury from discoloration by sap, and from ravages by worms.
(24) The supposition that plaintiff could have profitably gone to other markets on the gulf, or to foreign markets, is not supported by evidence of the existence or availability to plaintiff of such markets. It was not incumbent upon plaintiff to show that there were no such markets available to him. On the contrary, the burden was on defendants to show that such markets existed, and that they were reasonably available to plaintiff for the disposition of his logs at a better price, exclusive of transportation, than the local market afforded.
Let the judgment be affirmed as corrected contingently, at the cost of appellee; or else reversed, with remandment for another trial.
Corrected and affirmed.
