102 So. 606 | Ala. | 1924
The parties to this action entered into a contract for the sale by appellee to appellant of two carloads of peanuts at a stipulated price, to be delivered f. o. b. cars at Ozark within 15 days, "terms usual." Appellee delivered one carload, but failed and refused to deliver the other. Appellee sued for the contract price of the carload delivered. Appellant, in agreement with special pleas pleaded, sought to recoup in damages by showing appellee's breach of the contract in the matter of the other. The real issue between the parties arose out of the question of recoupment. Appellee's contention was that by the contract of sale it was to be paid cash down as soon as the cars were loaded upon the track; appellant that "terms usual" in that territory and in the peanut trade meant that appellee was to draw for 90 per cent. of the contract price, bill of lading attached, the 10 per cent. balance to be retained until delivery at Albany, Ga., appellant's place of business, "to insure *379 weights"; and that appellee's true reason for refusing to ship the second carload was that, after shipment of the first and before expiry of the agreed time of shipment, the price of peanuts had advanced by as much as $30 a ton. Errors are assigned upon questions of evidence, and some charges given and refused.
Appellee's witness Dominey would not say categorically whether he had received a certain letter written and duly mailed by appellant. The court sustained an objection to appellant's question: "A letter addressed to you at Ozark with a two-cent stamp on it and mailed would have reached you?" Witness resided at Ozark, and, this fact determined, the question called for a conclusion to be drawn from commonly known facts which the jury were as well qualified to draw as the witness, and, besides, the witness stated that he got his mail at Ozark.
Some of the rulings arose out of questions by which appellant sought to have its witness Brown say what "usual terms" in contracts of the sort meant in the territory in which both parties did business, and were unnecessarily narrow against appellant; the rule being that evidence of local or general usages of trade and commerce is admitted to ascertain the true meaning of contracts. Jones on Ev. § 457. The contract in this case was witnessed by a paper writing signed by appellee and delivered to appellant, and appellee's witness had testified without objection to the meaning of the terms thereof, "in the peanut trade." He testified, however, that he did not know the meaning of "terms usual." But it may be doubted that any substantial harm resulted to appellant from this ruling, for, in the end, the witness testified to his understanding of the meaning of the phrase at Ozark, where the contract was negotiated, and where, as we have seen, appellee did business.
Over appellant's objection appellee was allowed to ask the witness Wood, appellant's agent in the purchase of the peanuts: "Didn't you tell him [Dominey who acted for appellee partnership] as an inducement to the purchase of the peanuts that when they were loaded upon the track, you would pay cash for them or that Johnson-Brown Company would?" Appellee would justify this ruling on two grounds: One, that it was competent to show the true consideration moving from appellant — inducement to the purchase, the question put it — and, the other, that the paper writing did not evidence the entire contract, and therefore appellee had the right to the question as necessary to show the full content of the contract. Appellee does not contend that the paper writing fails to show correctly the price to be paid for the peanuts. As to that, see Leftkovitz v. First Nat. Bank,
The purpose and probative tendency of this question and answer were to show, not that when explained by trade usage "terms usual" meant cash down, but to show that the parties entered into a contract for the payment of the price cash down, the words of the written contract, properly explained, to the contrary, notwithstanding. Nor can the suggestion of error without injury be allowed to prevail. True, the witness denied that he had told Dominey that he — meaning his employer, appellant — would pay cash for the peanuts when loaded on the track; but the issue thus raised was precisely the issue appellant sought to keep out of the case and was, indeed, the only issue on which appellee could have prevailed, and, afterwards, appellee made the most of it, as its evidence in rebuttal shows.
We do not see that any harm was done by the rulings made the basis of assignments of error 7 and 8. The fact that witness Wood bought a third carload of peanuts for appellant from a different vendor on the same trip had only the remotest, if any, connection with the facts in issue before the jury.
So likewise the proof that Dowling Dominey, a member of appellee partnership, who was present at the negotiation of the contract, had not come of full age, had hardly any legitimate place in the record. Appellee was suing on the contract, and was not in a position to gainsay its validity, if that was the purpose of the question. But, afterwards, it came in without objection.
That the peanut crop was, that season, the leading crop of southeast Alabama, southwest Georgia, and Dale county, that many tons were selling on a market regulated and controlled daily, while of no particular *380 consequence, was not an improper subject of proof as tending to show the probable interest the parties had taken in the general subject of which the transaction in dispute was a part. At any rate, we do not see that it hurt appellant's cause. That the first carload had been shipped while the elder Dominey was out of the county was immaterial.
The charge made the subject of the nineteenth assignment of error was refused without error. The court could not be required to charge that there was no evidence of facts in issue. Nor did the court err in refusing the charge set out in assignment 20. The charge laid stress on a part of the evidence without noting the duty of the jury to consider all the evidence on the point mentioned.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.
