96 So. 344 | Ala. | 1923
The action is for damages for breach of contract in the refusal by defendant (appellant) to accept goods (denim) sold by plaintiff (appellee) to defendant, f. o. b. Baltimore; the terms being sight draft with bill of lading attached. The damages claimed, viz. $872.77, were predicated of the difference between the purchase price and the amount received on resale, together with $122.32 freight charges on the refused goods, paid by plaintiff, for their transportation from Dothan to Baltimore. The verdict was for $694.91.
Demurrer to the complaint was not the appropriate method to test its sufficiency with respect to the measures or elements of damages claimed therein. Treadwell v. Tillis,
The general issue alone was pleaded.
The plaintiff took the depositions of witnesses in its behalf. On objection of defendant, parts of the answers of the witnesses were ruled to be inadmissible; the excluded parts being indicated by pencil brackets. Notwithstanding defendant's seasonable objections, and motion to detach the excluded parts of the depositions, the court permitted the jury to take with them to the jury room these depositions, containing *341
matter held inadmissible; the court advising the jury that the bracketed matter was excluded and not to consider the excluded matter in arriving at their verdict. Consequent upon the considerations and authorities cited in Smith v. State,
There was no error in admitting in evidence the correspondence between the attorneys for defendant and the plaintiff or its attorney; the evidence disclosing the existence of that relation to defendant at the time the letters were received by defendant's attorneys and replies made thereto.
Upon the like considerations, there was no error in refusing defendant's requested instructions numbered 3 and 4. With respect to the admissibility of documentary evidence, the rule which requires the best, not secondary, evidence, of the subject of proof is not applicable to writings only collaterally related to the issues in contest. 6 Mich. Ala. Dig. p. 151, § 130. The written or telegraphic communications between these parties, as well as those relating to this sale of denim by plaintiff to defendant, emanating from or addressed to the textile company, were not erroneously admitted in evidence.
The subjects of assignments 35 and 38 (defendant's requests numbered 2 and 5) were substantially covered in the court's oral instruction of the jury. These questions, not now discussed in briefs if raised below, deserve consideration on any retrial that may occur:
First. Whether the defendant's letter of September 1, 1920, to plaintiff effected to exclusively restrict the basis for defendant's refusal to accept and pay for the goods to those stated in that letter, viz. business conditions generally and the inactivity of the buyer's (defendant's) own plant; in no wise assigning his refusal to receive the goods to defect in respect of quality or character. An affirmative answer to this inquiry, founded in waiver, would seem to be justified by Mechem on Sales, § 1077 and notes, and other authorities noted in 17 Ann. Cas. pp. 63, 64; whereas an important exception to this general rule, referable to the absence of knowledge of other grounds for refusal to perform the contract, recited in Mechem, on the authority of Littlejohn v. Shaw,
Second. Whether there was in fact a resale of the goods at Baltimore, within the rule which measures damages in proper cases by the difference between the purchase price of the goods refused by the buyer and the market value at the time of resale. The evidence for plaintiff appears to tend to show that there was, in fact, no resale at Baltimore; the testimony being to the effect the plaintiff could not sell the goods, that it simply "took over" the goods then in plaintiff's custody or under its control at 20 cents per yard. If there was in fact no resale within the rule stated — an inquiry that certainly could not be answered in the affirmative as a matter of law — and if there was no market value in Baltimore (the place of delivery of the goods to defendant's agent, the carrier), then the stated rule for the admeasurement of damages would not apply.
For the error in permitting the jury to take out the depositions, containing matter excluded, the judgment is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.