National Chemical Co. v. National Aniline & Chem. Co., 57 So. 114

57 So. 114 | Ala. Ct. App. | 1911

PELHAM, J.

The appellee wrote to the appellants on June 20, 1907, offering to sell them a quantity of ground senna, “quality equal to lot shipped and invoiced on April 11th, * * * f. o. b. New York.” The letter was written from appellee’s place of business in New York City to appellants in Birmingham, Ala., where they were engaged in putting up medicines. On June 27, 1907, appellants, by letter written from their office in Birmingham, replied to this offer to sell and ordered the goods, about 1,000 pounds of senna leaves, under the terms and conditions offered in appellee’s letter of June 20th, “if equal to the last lot shipped us.” Appellee replied by letter, acknowledging the order and promising prompt shipment. The goods were promptly delivered for shipment to the carrier f. o. fe. by the appellee in New York, marked to appellants in Birmingham, Ala.; the invoice being dated July 2, 1907. The correspondence introduced in evidence shows that the goods after their arrival in Birmingham were allowed to remain in the depot or warehouse of the carrier for about 30 days; appellants not taking them out until August 16, 1907.

Whether the railroad or appellant was at fault for the goods being kept in the depot or warehouse of the carrier is not material to the issues involved, as appellants ordered the senna from appellee f. o. b. New York, and a delivery to the common carrier there by appellee was a constructive delivery to the appellants, and the appellee would not be liable to appellants for injuries or damages to the goods after their arrival in Birmingham.—Capehart v. Furman Co., 103 Ala. 671, 16 South. 627, 49 Am. St. Rep. 60.

The appellant, after receiving the goods, made no complaint and offered no objection to them, but, on the contrary, made several promises by letter to pay for them, and, not having done so, appellee brought suit in the court of a justice of the peace on January 3, 1908, and recovered judgment on October 18, from which an appeal was prosecuted by appellants to the circuit court of Jefferson county, where appellee recovered the judgment from which this appeal is prosecuted. The evidence in the trial court on the part of appellants was to the effect that the senna received was not of the quality ordered, and that “it was full of leaves, stems, and worms and bugs” and was worthless; that the lot previously shipped, to which this was to correspond, was of the best quality. The evidence on behalf of appellee was to the effect that the senna shipped and delivered by it to the carrier f. o. b. New York was taken from the same lot as previously shipped, imported at the same time from the same party, and was free from leaves, bugs, or worms, and was of the best grade and quality, and in every respect equal to the lot previously shipped. The evidence was without dispute that appellants had made repeated promises to pay and offered no objection of any kind to the goods until the appellee placed the claim in the hands of an attorney for collection. The appellants testified that when they received the senna, they needed it to fill orders on hand and endeavored to nse it by passing it through a sieve to eliminate the leaves, hugs or worms, but afterwards found it worthless. No offer to return, or objection of any kind, was made to the goods by appellants after receiving them about the middle of August, 1907, until shortly before suit was brought in January, 1908, when the claim was in the hands of an attorney for collection. And it was during this period, on October 12, 1907, and November 29, • 1907, that appellants wrote the appellee asking an extension and offering to pay.

The several assignments of error going to the rulings of the trial court on the pleadings are without merit. The pleas of appellant to which demurrers were sustained set up matters that were mere conclusions of the pleader (McAllister v. Matthews, 150 Ala. 167, 43 South. 747, and authorities there cited.), or were not an answer to the action declared on.

All the matters that the defendants were entitled to the benefit of as a defense to the action that were attempted to be set up in these pleas they had the full benefit of in other pleas, and the rule is well settled that, where a party gets all the benefits on the trial it would have received if the ruling on demurrer had been otherwise, the error, if any, is error without injury.—Marlowe v. Rogers, 102 Ala. 510, 14 South. 790; A. G. S. R. R. Co. v. Dobbs, 101 Ala. 219, 12 South. 770; 3 Mayfield’s Dig. p. 10, § 6, and list of authorities given there.

The court was not in error in giving charges “C” and “A” requested in writing by appellee. No damages were shown under the defendants’ pleas of set-off.

Charge 2 given at the instance of the appellee states a correct proposition of law as applicable to the evidence. If the appellants deemed that it had a ten: dency to mislead, in that it failed to specifically instruct with reference to the goods being of the same .quality as the April shipment, an explanatory charge should have been requested.

Charges 3 and 4 assert correctly the law applicable to the facts predicated, and were properly given. ‘

There was no error committed in the refusal of charges requested by the appellants. Charge 2 requested by appellants and refused, viewed in the light of the evidence, was decidedly misleading in failing to allege the inferiority in quality to have existed before or at the time of shipment. For anything appearing in the charge to the contrary, the goods may not have been “inferior in quality” when delivered to the carrier in New York, but became so, without fault on the-part of the shipper, while in transit or while lying in the depot in Birmingham, after they were in the actual or constructive possession of appellants. It also ignores the liability that might he occasioned by retaining the goods and promising to pay. The charge ignores a material part of the evidence, and was properly refused.—Elliott v. Howison, 146 Ala. 568, 40 South. 1018.

Charge 6 was faulty for the same reasons pointed out as to charge 2. The senna, if the appellee’s testimony be' considered, may have been of the grade and quality ordered, and delivered in good condition f. o. b. New York. The charge ignores this part of the appellee’s evidence completely.

Charges 8 and 9 do not assert correct propositions of law applicable to the evidence.

Charges 11 and 12 disregard the- evidence of the appellants’ promise to pay after receiving the goods, and also the question of whether or not the goods retained by appellants were worthless., and no obligation rested on them to rescind the contract and return the goods. These were all matters on which there was a conflict in tbe evidence, and the charges instructing the jury to return a verdict in favor of appellants without regard to the evidence on this phase of the case were properly refused.'

Charge 14 was clearly erroneous. The contract was to deliver to the transportation company f. o. b. New York, and not in Birmingham.

Charge 15 had a tendency to mislead, and was also properly refused for the same reason discussed in sustaining the rulings of the trial court as to charges 11 and 12.

Charges 17, 18, 20, and 21 are erroneous for the same reasons assigned in reference to charges 6 and 14.

Charges 25 and 26 invade the province of the jury and charge on the effect and weight of the evidence.

The errors assigned fail to show any reversible error, and the case is affirmed.

Affirmed.