79 So. 367 | Ala. | 1918
Since pertinent rules of the Alabama Cotton Seed Crushers Association were made a part of the contract, with particular reference to section 3 of rule 15 set out in the statement of the case, ante, the appellant insists that the letter of defendant's manager, set forth in count 4, effected to afford an estimate of the amount of the production, within the contemplation of that section (3) of rule 15. It may be remarked, at this point, that the exigencies of this case do not require a construction of section 3 of rule 15. The letter is to be read and interpreted in the light of the circumstances surrounding and relating to the transaction and of the manifested purposes of the parties. As we understand the terms of the letter — and they are not at all obscure — the clear intent was not to undertake to give an estimate of the mill's production of "linters," but, on the contrary, to merely recite an expectation on the part of the writer with respect to the amount of "linters" the mill might produce. The figures employed in the letter token the entertainment by the writer of an opinion that was markedly uncertain. The writer, himself, recognizing this uncertainty, expressly stated his company's desire to only engage to sell the output of the mill, thereby implying, necessarily we think, that the obligation assumed should only comprehend what the mill made. This idea was repeated, and thereby emphasized, through the expression, in the concluding lines of the letter, that the seller's engagement was, and should be so understood, to impose the obligation to only deliver "what we make," thereupon excluding the possibility of an undertaking on the part of the seller to deliver any particular quantity, estimated or otherwise. Count 4 proceeded on an opposite theory, and was hence subject to the demurrer.
In order to attribute error to the trial court in sustaining the demurrer to the fifth count, it must be concluded that the contract declared on required the defendant to operate its mill, at least when practicably possible to do so, during the period stipulated, and, in consequence, obliged it to produce "linters" for delivery to the plaintiff. We find in the contract no such obligation. The seller engaged to sell its "make" of "linters." It did not obligate itself to make any "linters." There was no manifestation of an intent to so engage. The terms employed disclose that the seller's purpose was to sell "what we make," the season's make, no purpose to engage to sell a definite or even an estimated number of bales of "linters." It is not possible to imply an obligation to make an article from an assumption of the limited obligation to sell, not a definite number of an article, but simply, merely, what the seller makes. Where the seller engages to sell and deliver the output of his plant and the buyer engages to take and pay therefor, the buyer is liable to the seller for the damages resulting from the refusal of the buyer to receive and pay for the make or output that the seller's plant has actually produced. McIntyre Lumber Co. v. Jackson Lumber Co.,
The judgment is affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.