60 So. 437 | Ala. Ct. App. | 1912
This was an action for damages which the appellee (plaintiff in the court below) claims that he sustained by reason of an alleged breach of an alleged contract which the appellee claims that the appellant (defendant in the court below) made with him on January 30, 1911. If the contract was made as alleged, then the appellant contracted to buy from the appellee, and the appellee contracted to sell and deliver to appellant, at Birmingham, Ala., 1,000 barrels of flour, at $5.50 per barrel, to be delivered, as ordered by the appellant, as follows: Two hundred fifty in the month of May, 250 in the month of June, 250 in the month of July, and 250 in the month of August. It seems that on the 30th day of January, 1911, an order for the above flour, to be delivered' as above indicated and on the above terms, was signed by the appellant through one Daniels, who was the bookkeeper of appellant, and on said day the acceptance of the order was signed in the name of the appellee by one J. P. McDonald. The appellant is a merchant in Birmingham, and it claims that Daniels had no authority to make the order, and that it was not bound by the contract. McDonald was a broker, but he testified, and so did the appellee, that he had the authority to make and sign the contract on behalf of the
We have already stated that the flour was to he delivered in Birmingham, in May, June, July and August for $5.50 per barrel. The appellee’s evidence tended to show that on February 14,1911, the day on which appellant’s letter ^declining to enter into contract” was received by appellee, the market price of G-old Dust flour in Birmingham was $4.80 per barrel, or 70 cents per barrel less than the price at which, according to appellee’s contention, he had contracted to deliver, in lots of 250 barrels, to appellant in May, June, July, and August. A mathematical calculation shows that in rendering judgment for appellant the court awarded the appellee 70 cents per barrel or $700, with the interest thereon from February 14, 1911, to the date of the judgment. No allowance was made by the court for the cost of the carrying charges on the flour which the appellee would have had to pay if the alleged contract had been completed, and the damages' were assessed by the court without regard to or allowance for the fact that the appellee, by being allowed interest, actually received his damages before the date of delivery had arrived. There was no evidence in the case tending to show what the cost of carrying a barrel of flour per month is.
In Gate City Cotton Mills v. Roseman Hosiery Mills, supra, which was an action for the damages sustained by the seller of hosiery yarns by reason of the breach by the buyer of the yarns of an executory contract of sale, the trial court, at the written request of the plaintiff (the seller), charged the jury that the measure of the plaintiff’s damages was the difference between the cost of the manufactured articles and the contract price. The defendant contended, on the other hand, that such was not the proper measure of damages, but that the true meas-rue of such damages was the difference between the contract price and the market value of the articles at the time of the breach of the contract. The Supreme Court held that the contention of the defendant was the proper one, and allowed that measure to prevail for which the defendant contended. The identical situation prevailed in Wheeler v. Cleveland, supra. In both the above cases the court held that the plaintiff’s measure of damages was the difference between, the contract price and the market value at the time of the breach of the contract, but that rule was, in each case, contended for by the defendant, and that rule was not, so far as the record in either case discloses, subject to any modification by reason of the peculiar facts in either case. In Davis v. Adams, supra, in which the above rule was also announced, the buyer refused to accept the cotton, the subject, of the contract of sale, when tendered by the seller at the time and place fixed by the contract for the delivery, and, of course, the rule in its fullness was applicable to the facts of that case. In West v. Cunningham, supra, the facts were that the buyer agreed to take immediately from the seller a lot of oranges then on .board a vessel at an agreed price. The buyer refused
The cases referred to -in Decennial Digest, supra, are cases announcing' the doctrine declared in Pancake v. George Campbell Co., supra, and refer in no way to the proper measure of damages in suck cases. The rule which we think Mr. Sutherland in his work on Damages regards as the true rule in such cases (see 3 Shtherland on Damages [3d Ed.] note 2, § 6) is that: “In such cases the damages are not the difference between the contract price and the market value on the day the action is brought. It is the duty of the jury to assess them,
In the instant case the court has allowed the plaintiff the difference between the market value of flour in Birmingham on February 14, 1911, the day on which, according to the plaintiff’s contention, the defendant breached the contract, and the contract- price of flour, although none of the flour could have been forced upon the defendant under the terms of the alleged contract until the last day of the following May, and then only one-fourth of such flour. Suppose, as an illustration, the contract had called for a delivery of flour in the year 1914, instead of in May, June, July, and August, 1911. Suppose on the 14th day of February, 1911, the defendant had notified the plaintiff that the flour would not be received by it. Could it be said that the true measure of damages was the difference between the contract price and the market value of the flour on February 14, 1911? We think not, and we do not think that
Reversed and remanded.
Nom — The foregoing opinion was prepared by Judge de G-raffeniued, while he was' a judge of this court, and is adopted by the court.