138 Ala. 372 | Ala. | 1903
Nichols sues Rasch for an alleged breach of contract which is as follows: “This contract made and entered into by and between Joe Nichols and Ed. Rasch, Witnesseth, Rasch sells to Nicholas one 1020 Adams engine now in Colbert county near Smithsonia. The boiler to be delivered in Florence. For all of which Nichols agrees to pay two hundred and forty dollars, to be paid forty dollars in cash, and balance in monthly installments of $35.00 each, to be paid on the first day of each month, beginning January 1st, 1900. Rasch retains the title to said boiler and engine until they are paid for in full. Nichols agrees to set up a shingle mill on a site to be furnished by Rasch convenient to a good permanent supply of water. Rasch sells to Nichols 400 cords of chestnut, suitable for making shingles of good ■merchantable quality, the wood to be cut 4 feet 3'inches,, sticks 8 in. to 11 in. in diameter to be left round, stick's 11 to 14 in. in diameter to halved, sticks 14. in. and upwards in diameter to be split into good large bolts suit-' able for making shingles; Rasch to deliver said material on the mill yard at the rate of 60 cords per month., Nichols agrees to cut that amount peí month., Nichols agrees to pay $1.85 per cord, settlements to be made on the 1st of each month. Rasch agrees to begin deliver
Jos. A. Nichols.
Ed. Rasch.
The breach complained of is a failure of defendant to furnish timber according to his undertaking. In the first count of the complaint the claim of damages is general. In the second and fourth counts the claim is confined to damages alleged to have resulted from plaintiff's inability, produced by lack of timber, to fulfill certain contracts with third persons for the sale to them of shingles. In these counts there arc1 averments to show that the fact that plaintiff was under these contracts was known to defendant, but' whether' he had such knowledge when he made the contract with plaintiff is not averred. In the third count it is alleged in substance tliat the defendant was aware in the making of the contract, that the purpose of the same was to supply plaintiff’s shingle mill continuously with timber for use in making shingles, that other timben* was not accessible to the mill, that defendant’s promises to perform his part of the contract, kept plaintiff-waiting, and his mill; teams and men unemployed, that plaintiff had a regular market for the product of his mill at a price averred, and that by reason of defendant’s failure to supply timber and plaintiff’s inability to procure other material “he lost the profits on said timber, the sum of two thousand dollars which he claims as damages.” If either of these counts should be considered as embodying a claim for general or nominal damages the same might be further considered as showing a cause of action, and as not being open to objection by demurrer; but the entire claim in each of them being explicitly averred to have arisen from special matters, no room is left for presuming thereunder the existence of damages from other
We interpret the agreement for “settlement to be made on the first day of each month” as intended to provide for payment to be made on the first day of each month for the timber-delivered under the contract during the next previous month. In this construction Ave are aided by the evidence Avhich shoAvs that some payments Avere made on timber delivered in partial compliance Avith the contract and which in this and in other phases
There is nothing in the record which makes it necessary to consider whether the stipulations for the delivery of timber and that of making monthly settlement were dependent or independent.
Affirmed.