44 So. 557 | Ala. | 1907
This was an action of detinue, brought by the appelle against the appellant, to recover one steam shovel, which we will call the “Baby Shovel.” On the 13th day of January, 1905, the instrument in writing set out in the record was executed, by which the plaintiff leased the “Babv Shovel” to the defendant for nine months in consideration of $1,083.35 to De paid in cash and the remainder to be paid in monthly installments; and the instrument stated that, after the payment of said monthly rentals in full, the defendant should have the right to purchase said shovel by the pay ment of $10, on the payment of which a bill sale was to be executed vesting the absolute title in defendant, with the usual agreement authorizing the lessor to take possession and terminate the lease on failure to pay rent as it accrued. There being considerable delay in delivering this shovel, the plaintiff, when drawing for ‘ the cash payment, deducted $250 by way of compensating
The appellant claims, first, that the result of the agreement, when the second contract ivas made, was that the damages allowed him paid up the balance of the notes on the “Baby Shovel,” so that it became his, and in addb tion paid a part of the purchase price of the “Little Giant,” so that there remained only $1,500 to be paid to make the $6,250 to be paid for the last shovel. That would have been the practical result if the second contract had been carried out; but the contract is entire,, and was evidently intended as a settlement of all the controversies between them. There is nothing, either in the written contract or in the evidence, to show that there was a distinct agreement that the amount of damages due the defendant should operate as a payment of the notes on the “Baby Shovel,” but only that “the acceptance of this proposition” would “constitute a mutual cancellation of all obligations between the parties.” Then the acceptance of that contract canceled the obligatíos óf the plaintiff to pay damages to the defendant on account of the “Baby Shovel,” and canceled the obligation of the defendant to pay the remaining rent notes. To cancel is not to pay, but to obliterate, to annul, to destroy. If all the obligations between the parties were
There is no dispute about the fact that the “Little Giant” shovel was never accepted, nor about the fact that it was not what was agreed to be sent, both on account of the engine being smaller than the one agreed to be sent, and on account of other defects, all of which were such that plaintiff’s agent, sent -for that purpose, could not make it operate. In addition to this, the defendant testifies that there was a cotemporaneous verbal agreement that he was to have the use of the “Baby Shovel” until the other was delivered according to specifications. Whether those exact words were used or not, a delivery of the one purchased evidently meant a delivery of one answering the description in the agreement,
The appellee claims that the parties themselves placed a different construction on the contract, and refers to correspondence, commenced eight days after the date of the contract, by the letter of plaintiff dated December BO, 1905, in which it informed defendant that certain prospective purchasers would be there to look at the “Baby Shovel”; but, if that is an indication that it was understood that it was to be delivered up at once, why did it say, “We trust there will be no trouble with you in securing possession, if we should so desire,” and “We will make any necessary arrangements that will protect ■you, if you have any doubt about our carrying out our contract;” and why did the defendant, in replying, say, “My understanding with Mr. Beid was that I should have the privilege of using the shovel until mine arrived,” but that he felt sure they could arrange it? There would have been no arrangements to make, if it was the right of the plaintiff to take possession at once, and no necessity of protecting the defendant, unless the taking of the shovel from his possession would be depriving him of some security which had been left in his hands, or some use which had been granted to him. But, even if this be not the correct interpretation of the contract, the most that could he said would be that the contract is silent as to when the “Baby Shovel” was to be delivered.
From what has been said, it appears that it was material, to the point as to whether the plaintiff had complied with its part of the second contract, so as to be
The judgment of the court is reversed, and the cause remanded.
Reversed and remanded.