The annellee. George M. Rosengrant, sued appellants, Max Lowy and B. A. Kobler, upon a complaint containing four counts: The first, upon account; second, for money had and received; third, for merchandise, goods and chattels sold; and fourth, in assumpsit.
The first and second grounds of demurrer to the fourth count of the complaint are directed to the failure to allege the quantity of claret staves which the plaintiff undertook to sell and deliver to the defendants; and the third, sixth, and seventh grounds, to the failure of allegation that the plaintiff was ready, able, and willing, or that he offered to deliver the staves within the contract time limit; while the fourth and fifth grounds are that from the allegations of the count the defendants had the right to decline to receive the staves.
The suit was not for a breach of the contract of purchase, but was for the recovery of a balance of the purchase price of the staves delivered by appellee and accepted by appellants as a part performance of the contract. From the purchase price of the staves so delivered and accepted on the contract, appellants had retained the sum of $7,000 as a guarantee of future deliveries; and appellee’s insistence is, that a substantial part of the contract being performed and accepted, a recovery may be had for the balance due him, on the common counts.
The fourth count alleges the making of the contract between plaintiff and defendants, for the delivery of a large quantity of claret staves, the red oak staves to be delivered within a reasonable time after the execution of the contract, and the white oak staves to be delivered before' August 1, 1914; that the red oak staves were delivered, and that said contract contained a further provision “that the defendants should retain out of the purchase price for said red oak staves the sum of $7,000, to be held back by them until the delivery of all of the said 36-inch white oak French claret staves;” and that thereafter, and before the said 1st day of August, 1914, the defendants declined to receive said white oak staves. It alleges, further, “that the plaintiff is ready
This right, however, is subject to recoupment for the resulting damages to the defendant (Ala. Chem. Co. v. Geiss, 143 Ala. 591, 39 South. 255) that may be “a matter of easy ascertainment,” or that can be calculated with “any degree of certainty” and .is “susceptible of measurement by a pecuniary standard.”—Stratton v. Fike, 166 Ala. 203, 209, 51 South. 874; Henderson-Boyd Lumber Co. v. Cook, 149 Ala. 226, 42 South. 838; Keeble v. Keeble, 85 Ala. 552, 5 South. 149; McPherson v. Robertson, 82 Ala. 459, 2 South. 333; Dees v. Self Bros., supra; Walshe Mfg. Co. v. Smith Lumber Co., 178 Ala. 472, 59 South. 455; 2 Paige on Contr., § 1175.
There was no error of the court in overruling the demurrers to the fourth count of the complaint that sought recovery for the balance of the purchase money of the staves delivered by plaintiff and accepted by defendants.
■ Defendants’ amended pleas 2, 3, and 4 met the objections pointed out by the plaintiff’s demurrers sustained to pleas 2 and 3 as originally filed. There was no error in the ruling of the court.
The fourth plea was of like tenor, but alleged, in addition, an extension of the time in the contract for the delivery of a portion of the white oak staves, and “that plaintiff knew at the time of the execution of said contract of April 30, 1914, that said white oak French claret staves were being purchased for the Bordeaux market in France.”
The fourth replication filed to pleas 2, 3, and 4 is as follows: “And for further replication this plaintiff says that after the said 1st day of August, and on, to-wit, the 3d day of August, 1914, the defendant through his agent, notified the plaintiff in writing that he reserved the right to accept • further deliveries under said contract after the expiration of the month of August, 1914, and thereby waived the time limit for such deliveries, and thereafter the plaintiff had a reasonable time within which to make deliveries to the defendant, and the defendant at no time since' the month of August, 1914, notified the plaintiff that he demanded delivery within any fixed period.”
In Thorne v. French, 4 Misc. Rep. 436, 24 N. Y. S. 694, there was a contract between plaintiff and defendant whereby the plaintiff’s opera company was to play in defendant’s theater, the engagement to commence September 1st. On that date the company then playing at defendant’s house was so successful that it was continued throughout the period that plaintiff’s company was to play, and until the day for a third company to begin its en
In Hennessy v. Bacon, 137 U. S. 78, 84, 11 Sup. Ct. 17, 19 (34 L. Ed. 605), Mr. Justice Harlan states the general rule as to rescission upon breach of contract to be: “If a party means to rescind a contract because of failure of the other party to perform it, he should give, a clear notice of his intention to do so, unless the contract itself dispenses with such notice, or unless notice becomes unnecessary by reason of the conduct of the parties.” — 1 Sugden on Vendors, c. 5, § 5.
In Dingley, et al. v. Oler, et al., 117 U. S. 490, 501, 6 Sup. Ct. 850, 853 (29 L. Ed. 984), the defendant, an ice dealer, had all of the year 1880 in which to make a shipment to plaintiff. Plaintiff wrote, demanding the shipment early in July of that year,
The court, holding that such communication did not show a positive intention to abandon the contract so as to constitute an anticipatory breach and allow the plaintiff to sue at once, said: “Although in this extract they decline to ship the ice that season, it is accompanied with an expression of an alternative intention, and that is, to ship it, as must be understood, during that season, if and when the market price should reach the point which, in their opinion, the plaintiffs ought to be willing to accept as its fair price between them. It was not intended, we think, as a final and absolute declaration that the contract must be regarded as altogether off, so far as their performance was concerned, and it was not so treated by the plaintiffs.”
In Andrews v. Tucker, 127 Ala. 602, 612, 29 South. 34, 38, the question was as to whether there had been a waiver' of the time stipulation in a contract to grade a road-bed. The court said: “By the law as it has been settled in this state, a written contract which by its term is executory as imposing the performance of duties other than the mere obligation of making payment, may, while the contract is executory in respect of any part of such duties, be altered, modified, or rescinded'with or without a writing and without any other consideration than that of mutual assent. * * * And such change under such circumstances may extend to the waiver of any right either party might have had under the original contract but for the new agreement. * * * A waiver of a right to declare a contract forfeited may even be implied from conduct of the parties which is inconsistent with the intention to claim a forfeiture. Accordingly, the fact that the contract here involved was acted upon and treated by the parties as in force after the time specified therein for completion of the work undertaken by plaintiffs implied an agreement on the defendants’ part not to treat the failure of completion within that time as a cause of forfeiture.”
In Brigham v. Carlisle, 78 Ala. 243, 246 (56 Am. Rep. 28), the plaintiff had a contract with defendant whereby he was to be defendant’s traveling salesman on a commission basis, his work to begin October 1st and continue eight months, but he became ill shortly before that time, and so remained until December. Late
In Stewart v. Cross, 66 Ala. 22, it was held that when a written contract for the sale of lands reserves to the vendor the right of rescission if payments are not made by a designated date, this right is waived by continuing to receive partial payments on the purchase money.—Acker v. Bender, 33 Ala. 230; Davis v. Robert, 89 Ala. 402, 8 South. 114, 18 Am. St. Rep. 126; Zirkle, et al. v. Ball, et al., 171 Ala. 568, 54 South. 1000.
It results from what we have said that there was no error in overruling the demurrer to the fourth replication to defendants’ plea.
In Massachusetts Mutual Life Insurance Co. v. Crenshaw, 195 Ala. 263, 768, this court said: “These pleas offered at the last trial, with the possible exception of those of the class last above referred to, though not so denominated, were in substance amendatory statements of the defense upon which the case has been first tried; they were not additional or wholly different pleas within the purport and meaning of the rule laid down in Jones v. Ritter, 56 Ala. 270, and the line of cases cited in Craig v. Pierson Lumber Co., 179 Ala. 530 [60 South. 838]; they fell rather under the remedial influence of the statute of amendments, and defendant should have been allowed to place them upon the file, their legal sufficiency remaining subject to question by demurrer, unless, indeed, it appeared that in other pleas already on file defendant had the full benefit of the defense it was thus attempting to cast into new shapes.”
The court committed no error in giving the plaintiff’s general affirmative charge. The case is affirmed.
Affirmed.