60 So. 270 | Ala. | 1912
This action is by the vendor against the vendee to recover damages for breach of a contract for the sale of 1,000 barrels of flour.
The evidence of the contract of sale is in the form of a printed order blank used by the plaintiff in its business, which the reporter will set out in full. Upon the back of this order is printed fixed conditions. The face of the order contains blanks to be filled in with data descriptive of the particular contract of sale, such as dates and places of sales and deliveries, brands, amounts, and grades of flour sold, character of packages — whether in barrels or sacks, etc. The chief, if not the only, difference between the parties is as to the construction of this particular contract of sale, as to the effect or means of the phrase, “buyer’s option,” which is written into one of the blank spaces on the face of the order blank or written evidence of the contract. This phrase is written in the blank space designated as “Date of Shipment.”
One of the five printed conditions on the back of the order is as follows: “(2) Unless otherwise specified, purchases must be ordered out within 30 days from the date of contract, with a maximum possible limit of 90 days from date of contract. If not so ordered out within 30 days, or within contract shipment period, flour is without notice from seller subject to carrying charges of 10 cents per barrel per month or fraction thereof, and feed 50 cents per ton per month, or fraction thereof. Such carrying charges become due and payable at the beginning of each 30-day period after the
It is contended by plaintiff, the appellant here, that the phrase, “buyer’s option,” written in pencil on the face of the order, is the only specified date at which the flour should be shipped, and that this should be construed as meaning within any reasonable time to be named by the purchaser in his shipping orders, and that this provision is substituted for, and takes the place of, the printed provisions on the- back, above referred to, as to the dates of shipment or of delivery, that this order is one within the protection of the printed provision, “unless otherwise specified,” and that the terms and dates of delivery were “otherwise specified” in this contract, and, as otherwise specified, were at the option of the buyer, provided, however, that it was Avithin a reasonable time. The construction of the vendees, the appellees here — and the construction Avhich seems to have been adopted by the trial court — of the contract in the particular in question is that the printed condition on the back of the order above set out as to dates of shipment or of deliveries or of orderings out, etc., control, and that the phrase, “buyer’s option” Avritten on the-face of the order, means, at his option, within the “maximum possible limit of 90 days”- — that is to say, in the language of the trial court, that the provision means that the flour should be shipped to the vendee at his option at any time within the 90-day period referred to on the back of the contract, and that the vendor should have the right to resell the flour at
The measure of damages as to the difference in price is the difference between the contract price and the market price at the time the vendees declined to order the shipment. Under the contract in question, the refusal of the vendees to take the flour purchased, or to
We find no errors of law as to the rulings on the plea of set-off. The only dispute as to that seems to be one
Reversed and remanded.