73 So. 535 | Ala. | 1916
Lead Opinion
(1) This was an action by appellant against appellee to recover damages for the alleged breach of an agreement by which appellee assumed to take and pay for the entire output of appellant’s Baker’s Creek mine for nine months at a stipulated price per ton, subject to appellant’s coal “proving entirely satisfactory” to appellee. The complaint alleged that paintiff expended large sums of money in opening his mine and in the purchase of machinery and mules wherewith to carry out his contract, and did mine and furnish to defendant under the contract a large quantity of coal which was accepted by defendant. There was, however, no averment that defendant had breached the contract by failing or refusing to pay for any coal delivered to him. The breach alleged was that after the parties, had acted under the arrangement for about four months the defendant gave notice that the. contract was canceled and that he would not accept or pay for any more coal. In the first count of the complaint plaintiff laid his damages “in the loss of profits that he would have made' in the sale of the coal that he would have mined and furnished the defendant under said contract.” The report will show the first count as amended. In the other counts plaintiff claimed damages in the loss of profits he would have made, and besides on account of money expended as aforesaid. It thus appears that two questions were raised on the-face of the record, to-wit, whether plaintiff had a cause of action, for unearned profits, and whether, in default of that, he might recover for money expended in preparing to mine coal for defendant. Both items were not recoverable, of course, since a. recovery of profits, estimated as upon the complete execution of the agreement according to the original understanding of the-' parties, would have necessarily included expenditures for preparation, less the values they left in the hands of plaintiff at the time the work on the contract ceased.—Worthington v. Gwin,
(2) Such agreements, like all others, are enforceable according to the true intent of the parties. If a party voluntarily assumes the obligation and risks of an agreement by which he undertakes to furnish labor and material for a compensation., the payment of which is made dependent on a contingency so. hazardous or .doubtful as the approval or satisfaction of the other party, his legal rights are to be determined according to its provisions fairly construed, and against the consequences resulting from his bargain the law can afford him no relief.—McCarren v. McNulty, 7 Gray (Mass.) 139. The difficulty of such, cases lies in ascertaining the real intention of the parties. Rules, laid down for such cases are really rules of interpretation, and! these are applied according to the situation of the parties and. the purposes they may appear to have had in view when entering; into the contract. This court seems to have accepted this general proposition, that to justify one party in his rejection of labor performed and material furnished by the other on the ground that they were not satisfactory, as the contract provided they should be, it must appear that the party seeking to avoid payment, according to the stipulation on his part, was in good faith dissatisfied and for some beter reason than that he merely desired to avoid liability.—Electric Light Co. v. Elder, 115 Ala. 138, 21 South. 983; Worthington v. Gwin, supra; Higgins Mfg. Co. v. Pearson, 146 Ala. 528, 40 South. 579. This doctrine is.' generally stated in substantially this form, that, to avoid liability-after performance, the dissatisfaction of the party for and to-whom work is done and material furnished must be genuine and caused by such defects or omissions as would cause a reasonable man to be dissatisfied. — 3 Page on Contracts, § 1390., But it is. commonly held that where the contract involves things intended to satisfy'personal taste or feeling the party to whom they are furnished is the free and exclusive judge whether they are satisfactory ; and substantially the same rule seems to be maintained in cases where, machinery or. special appliances have been fur
(3) Defendant contracted- — -if contract there was — to take the output of plaintiff’s Baker’s Creek mine, and upon this alone it might appear that he bound himself to take the coal from that mine whatever its quality. But he also exacted the stipulation, which occupied the leading place in his contract and upon which his-' obligation was made to depend, that plaintiff’s coal should prove entirely satisfactory. Assuming that the paper writing set out in the complaint discloses the entire meaning» of the agreement into which the parties entered, it may be that plaintiff could not, on this record, avoid the full effect of this stipulation .according to its prima facie import. ■ At any rate, the defendant in his fourth plea averred that the coal was purchased for- resale, which fact was known to plaintiff, and that on account of the' quality.of the coal, he (defendant) was unable to sell any more of it to his customers, and for this reason it was not satisfactory. This averment, if sustained by the jury, introduced a new element into the construction of the agreement in virtue of which at léast, very clearly, we think, defendant had a right to countermand further shipments, in effect, to rescind the contract as for a lack of performance on plaintiff’s part.
(4-6) Plaintiff’s claim in this case is affected by another consideration- — -the uncertainty of the alleged contract. The court will lean to that construction which will make the contract certain ; but it cannot set up a contract for the parties. Pretermit-t-ing the requirement that the coal should be entirely satisfactory, defendant’s proposal amounted to this, that he would take and pay for all coal as it might be mined and tendered by plaintiff. But by neither the express terms nor the legal effect of the alleged agreement was plaintiff bound to mine any coal. Of course the parties expected and intended that plaintiff would operate his mine; but the extent and result of that operation was not fixed by the contract. For aught appearing on the face of the contract, its execution was optional with plaintiff. Had he not operated his mine at all, or had he found it unprofitable and for that or any other reason ceased to operate it at any time during the niné months, defendant could not have' recovered damages for his
The cases upon which plaintiff relies do not sustain his right to recover unearned profits in the circumstances of the case at hand. In Worthington v. Gwin the plaintiff had entered into a definite undertaking to mine and deliver a certain specified body of ore (belonging, we infer, to the defendants, or under their '.control) an agreement capable of enforcement by an action for damages against him in the event he failed to perform. And in that case, we may note in passing, the court construed the stipu
In Sheffield Co. v. Hull Co., 101 Ala. 477, 14 South. 672, to which we have been referred, the contract was for the sale and purchase of a specified number of carloads of coke, and it was competent to show what a carload meant. In that case the contract depended upon a contingency — i. e., that plaintiff should be able to induce third parties to build additional ovens. After- , wards, in the express terms of a new agreement and by conduct both parties treated the contract as binding without reference
Plaintiff’s damages alleged in the way of unearned profits having thus gone by the board, it follows that he could not recover damages on account of his expenditures by way of preparation. It appears upon the face of the contract that the parties contemplated that plaintiff would make preparation, but he was not bound to do so, as the trial court instructed the jury; and if he did, he looked to his anticipated profits as the only source of reimbursement, and had no right to look elsewhere. His claim of damages on account of expenditures made, had there been a certain contract, would have been- allowable as an alternative compensation for unearned profits only in case and because he was unable to prove what such profits would have been. But the right to recover damages of either sort depended upon proof that defendant had breached his obligation as a condition precedent. We think we have shown that défendant was under no obligation to continue to receive coal of any character under the contract after the notice complained of as a breach. He could not, therefore, be held responsible for the money expended by plaintiff in preparation for the contract. His loss, if any he suffered, must be attributed to the injudicious or indiscreet nature of the contract he made. But of that he judged for himself. Where parties have entered into written engagements with express stipulations, these cannot be changed by implication. The presumption is that, having expressed some, they have expressed all the conditions by which they intended to be found.—Blackman v. Dowling, 63 Ala. 304. A party is not bound to do that which is not within the stipulations of the contract, whatever may have been the expectation and understanding of the other party.—Johnson v. Sellers’ Adm’r, 33 Ala. 265. Plaintiff must be held to have known that defendant might withdraw from this agreement at pleasure. He also knew, since the agreement so provided, that any compensation or reimbursement for expenses he expected to earn was subject to the contingency that the coal
The jury found for defendant under instructions (shown by the record) that were necessarily more favorable to plaintiff than they ought to have been, since the question at issue was submitted to them as a question of fact. This appeal is upon the record proper; we have not before us the evidence, nor any bill of exceptions; but, considering that the evidence was limited by the allegations of the complaint, it must have appeared that plaintiff was not entitled to recover, and thus it now appears that the jury gave substantial effect to the defense insisted upon and upon which as matter of law the defendant was entitled to prevail.
It results that the judgment must be affirmed.
Affirmed.
Dissenting Opinion
(dissenting.) — This was an action for damages for breach of a contract. . The appellee (defendant), and another not now concerned, agreed to buy the entire output of the appellant’s coal mine, during the period from October 1, 1913, to June 30, 1914, at the price of 95 cents per ton f. o. b. mines, subject “to your [appellant’s] coal proving satisfactory,” and “preparations being made,” by appellant, “according to our [defendant’s] specifications,” and stipulating for monthly payments for coal shipped by plaintiff, the bills of .lading to show defendant as shipper, and the plaintiff engaging to “furnish us [defendant] a daily report as per the blank which we have fur
Doubtless, evidence available to the parties would disclose their intention in stipulating for “preparations being made according to our [defendant’s] specifications,” and that the plaintiff would “furnish us [defendant] a daily report aS per the blank which we [defendants] have furnished you [plaintiff].” It is the judicial duty to ascertain the 'intention, and to give effect to the lawful intention of the contracting parties to the end that the obligations assumed by them may be found and appropriately enforced. Intention is the parent of obligation assumed; and if the parent is known, the offspring is generally readily found. “A promise is a good consideration to support a promise.”—Evans v. C., S. & M. Ry. Co., 78 Ala. 341, 345. “If the party in whose favor such unilateral promise is made, accepts its performance, or does any act in recognition of its implied or intended, though unexpressed consideration, this supplies the element of mutuality, and gives a right of action.”—Pratt Consol. Coal Co. v. Short, 191 Ala. 378, 68 South. 67; Sheffield Fur. Co. v. Hull Coal Co., 101 Ala. 446, 447, 14 South. 672; McIntyre Lumber Co. v. Jackson Lumber Co., 165 Ala. 268, 274, 51 South. 767, 138 Am. St. Rep. 66. In Evans v. C., S. & M. Ry. Co., supra, Stone, C. J., writing to the point of mutuality vel non in the contract there under review, said: “The whole doctrine, however, rests mainly on the absence of consideration to support the promise ; there being no corresponding promise to uphold the promise declared on. Hence, where there is a consideration, the rule (i. e., that both parties must be bound else neither is bound) does, not apply.”
The Chief Justice, then set forth the language above quoted in Pratt Consol. Coal Co. v. Short, supra. The doctrine of our cases, cited above, is in accord with authority, generally. See 9 Cyc. pp. 333, 334, and notes; 6 R. C. L. §§ 93, 94; Herrick v.
In view of the allegation of, and claim for, damages (set forth in the second and third counts) for expenditures made by the plaintiff in preparation for performance of the contract and employed in the actual performance thereof for a good part of the period provided in the contract, it is an obvious error, contradictory of two counts of the complaint, to accept as a premise for a conclusion practically destructive of the contract (except as fully executed for a part only of the period) that only loss of profits is claimed in the complaint. If there was a binding contract between the parties, then the general rule for the admeas-urement of damages for its breach (if it was breached without fault on plaintiff’s part) has application; and the necessary result must be that a decision predicated of the notion that only ldss of profits is asserted and claimed as an element of damages in the complaint, is manifestly ill-advised and unsound. Aside from other considerations that disclose the complete inapplication to the contract in question of the decision in and doctrine of the case of Pulliam v. Schimpf, 109 Ala. 179, 19 South. 428, and
This statement of conclusion accords with the court’s plainly stated purpose (see page 327 of 148 Ala., page 614 of 42 South.) to follow and apply the doctrine of Pulliam v. Schimpf, Erwin v. Erwin, and Howard v. Railroad Co. The case of Elmore v. Parrish, 170 Ala. 499, 54 South. 203, is likewise without application to the contract here involved, for, apart from obvious differences in the nature and terms of the contract there under consideration (set forth in counts 2 and 4) and that here involved, the decision was that the contract' was void for uncertainty in respect of the price and of the weight of the bales of cotton. Here the price of the coal was fixed by the express agreement of the parties; and the subject-matter of the contract
Where a contract is reduced to writing and its terms are unequivocal, unambiguous, nothing can be implied that is not expressed, nor can implication serve to extend the obligations thereof; the presumption being that the parties have expressed all the conditions by which they intend to be-bound.—Blackman v. Dowling, 63 Ala. 304; Electric Co. v. Elder, 115 Ala. 138, 148, 149, 21 South. 983. But where the contract, though written, is susceptible of two constructions, one of which will sustain and the other invalidate it, that which will sustain the contract will be adopted. —Lively v. Robbins, 39 Ala. 461, among others. The essential element of mutuality in a contract need not be expressly provided. If the parties intend to make mutual promises and employ terms — in the light of the circumstances surrounding the parties and the purposes entertained by them— that import a meaning to become mutually bound, then-the contract is not void for the want of mutuality.—9 Cyc. 333; Minneapolis Mill Co. v. Goodnow, 40 Minn. 497, 42 N. W. 356, 4 L. R. A. 202. There are at least two provisions in the letter, setting forth the terms of'the agreement, which deserve to be considered in determining the mutuality vel non of the contract the moment it was made by the parties. These provisions show unmistakably that the plaintiff bound himself, promised the defendant to make “preparations” to mine the coal in plaintiff’s mine “according to” the defendant’s “specifications,” and also bound himself “to furnish” defendant with “a daily report, as per the blanks which” defendant should furnish the plaintiff. If the latter provision contemplated, as in the absence of all evidence it is fair to assume was the purpose in so stipulating, a daily report of the operation of the mine, to the end that the
If, however, it should be assumed that the plaintiff, at the time they contracted, made no promise to the defendant to operate the “Baker’s Creek mine,” during the period stipulated, and thereby-leaving the promise of the defendant to buy the' “output” without the supporting consideration of a correlative promise on the plaintiff’s part to operate the mine and thus produce an “output,” the doctrine reproduced above from our cases of Evans v. Railroad, Sheffield Fur. Co. v. Hull Coal Co., Pratt Consol. Coal Co. v. Short, and McIntyre Lumber Co. v. Jackson Lumber Co., ante, must be accorded application and effect to sustain the contract by affording a consideration for defendant’s promise to buy the “output,” because, as appears from all the counts, the plaintiff expended his funds in preparation to mine the coal and in mining the coal to meet the condition to the defendant’s promise to buy the “output,” at a specified price per ton, if the coal met the legal standard fixed by the parties for the quality thereof. The defendant having given the promise to buy and the seller having made an outlay to afford the subject- of the defendant’s promise to buy, “this,” to again quote the Evans Case, “supplies (supplied) the element of mutuality.” The applicable doctrine of the cases mentioned is further illustrated in our case of Mott v. Jackson, 172 Ala. 448, 55 South. 528, though not more aptly so at this time than in Pratt Co. v. Short, where Short had not promised to mine any coal in the described area; but, having entered upon the work just as if he had originally, expressly
The second plea asserted. that the “qúality or condition of the coal mined from defendant’s [meaning plaintiff’s] said mines did not prove satisfactory to them.” The contract declared on submitted the quality of the coal which defendant obliged himself to take, for a definite period at a stipulated price, to the entire satisfaction of the defendant, “preparations being made according to our [defendant’s] specifications,” and that the plaintiff should “stand ready and willing to prepare coal in a proper and marketable manner.” It is manifest from the contract that the satisfaction to which the parties subjected the coal, defendant obliged himself to take concerned only the quality of the coal, and that the plaintiff should be accorded adequate opportunity to make the condition of the coal conform to marketable shape. The pleader in the second plea, asserted as the basis for defendant’s dissatisfaction with the coal, mined from plaintiff’s mines, that its quality or condition was not satisfactory to defendant. Under this contract the character of the satisfaction to which the parties subjected the quality of the coal defendant agreed to take is well defined in Electric Co. v. Elder, 115 Ala. 138, 153, 21 South. 983. According to that established authority defendant could not be legally dissatisfied with the quality of the coal tendered by the plaintiff, and thus avoid his obligation to take the coal, unless his dissatisfaction was not capricious, was founded in good faith, was not the result of design to be dissatisfied, but was an honest conclusion consequent upon a reason with respect to- the quality of the coal. “If defendant had no reason to be dissatisfied, * * * he was bound to be satisfied.”—Electric Co. v. Elder, 115 Ala. 154, 21 South. 983. In such pleas “the facts which cause the dissatisfaction” must be stated.—Electric Co. v. Elder, 115 Ala. 154, 155, 21 South. 983. The thirteenth ground of demurrer takes the objection that the plea did not set forth “with sufficient definiteness wherein or how the said coal was unsatisfactory to defendants.” The ninth, eleventh, twelvth, and fourteenth grounds of the demurrer raised objections of the same general nature. Aside from the possible faults introduced by the general, indefinite averment in the alternative of the condition of the coal as the basis for defendant’s
Pleas 3 and 4 proceed upon a materially different status of contract from that set forth in plea 2, when read in connection with the counts of the complaint. They might have been better framed if they had characterized defendant’s dissatisfaction as bona fide; but this objection to these pleas was not taken by the demurrer. I see no error in overruling the demurrers to these pleas (3 and 4.)
I would reverse the judgment. It appears from special charges given to the jury that the court submitted the issues to the jury, thus rendering impossible the application of rule 45 (175 Ala. xxi, 61 South, ix).
Concurrence Opinion
-I concur in the affirmance in this case, but not in the opinion of the majority. I am of the opinion that the pleas were not subject to any assignment of demurrer addressed thereto, and that the demurrers to the replications were properly sustained. I do not, therefore, find any ruling of the court on the pleading calling for a reversal, and for this reason concur in the result of the appeal.