Shackelford v. Sloss Iron & Steel Co.

140 Ala. 329 | Ala. | 1903

DOWDELL; J.

This is an action of assumpsit. The comp! aint contains several counts. The first being the common count for work and labor done. Nothing is claimed or insisted, on under this count. The other counts claim damages for alleged breach of a contract in writing made between Sloss, Iron & Steel Company, and George C. Jones, doing business under the name of the Calhoun Mining Company; the appellant, W. C. Shack-elford claiming as assignee. Leaving out the formal commencement, the contract reads as follows: “That the Calhoun Mining Company hereby agrees to sell and ship to Sloss, Iron & Steel Company their entire output of brown ore, up to one hundred tons per day, for a period of seven months, commencing June first, 1900, at a price of one dollar and 25-100 (§1.25) per ton of two thousand two hundred and forty (2240) pounds f. o. b. their mines. Furnace weight to govern in settlement, subject to such check at. any time as Calhoun Mining Company may-desire to put on them. In consideration of the above agreement, Sloss, Iron & Steel Company hereby agree to receive from Calhoun Mining Company the ore as above mentioned, such ore to be delivered shall be of marketable quality, and of a fair average of brown iron ore ordinarily mined and shipped from said district; the Sloss, Iron & Steel Company, or its successors, shall have the right to reject any car or cars of ore that do not carry, fairly sampled, forty-four (44) per cent, of metallic iron, for the purpose and at the prices named, and to pay therefor on or before the 10th day of each month, after the amount due on mortgage and interest is paid, for all shipments made during the previous month. It is mutually understood and agreed that during strikes or agitations among workmen at the blast furnaces and mines, or other unforeseen circumstance's which stop or diminish the production, as Fell as during the interruption of navigation through strikes or other circumstance, deliveries against this contract may be suspended, but as soon as such interruptions, etc., are overcome, shipments shall be resumed under this agreement at contract rates; buyers and sellers, are, however, bound to fulfillment of this contract afterwards.” This contract bears date of June 12, 1900.

The assignments of error relate to tbe rulings of the court on the pleadings; to the conclusions on the evidence, and to the judgment rendered. It is unnecessary to consider the assignments separately, as the question presented by the rulings turns upon a proper construction of the contract. If the appellant’s contention as to the meaning of the contract is right, the judgment should be reversed, while, on the contrary, if the appel-.lee is right in its contention, the judgment should he affirmed.

The court, at the instance and request of‘the appellant, who was the plaintiff in the suit, made a special finding of the facts, which finding is set out in full in the record. No question is raised, but on the contrary it seems to be conceded, that under the act approved February 28, 1889, (Session Acts, 1888-9, p. 992), relating to the city court of Birmingham, this court may review the findings of the city court on the evidence. The same result in this case, however, would follow, whether the findings by the trial court be reviewed or not. Three of the assignments of error relate to the.findings of the court, but none of these assignments are insisted on in argument, except the "finding by the court, “that the defendant was not notified and did not know that the ore shipped as aforesaid was not the output of the mines of the Calhoun Mining Company.” It is sufficient to say in this connection that the evidence warranted this finding of fact by the court. Moreover, we think that all of the special findings by the court are fully sustained by the evidence. Among other findings by the court, was the finding that there had not -been any change or modification of the contract sued ou.

The contention of the appellant is, that the defendant was bound to take 100 tons of the ore of a certain quality each day for seven months, if the Calhoun Mining Company could furnish it, no matter whether it was the out-put of their mines or not. The contract in its language is plain and unambiguous and calls for no construction. Where such is the case, the parties to it are bound by its terms, and the courts will not go outside of it to inquire into the conduct and motives of the parties in making it. This contention of appellant would render meaningless the terms of the contract, by which, the Calhoun Mining Company agreed to sell and ship to the defendant, and the defendant agreed to receive and pay for at a stipulated price, “their entire out-put of brown ore up to one hundred tons per day” for a stated period of time, and the price was “f. o. b. their mines.” That the Calhoun Mining Company had mines is not denied. Could it be affirmed under the above terms of the contract that the Calhoun Mining Company was bound to deliver 100 tons of ore of the kind and quality named, except it be out-put of their mines? We think not. The parties being sid juris it was perfectly competent for them to contract either for the out-put of a given mine, or generally, for a stated amount of ore per day. The language of the contract is clear and there is no element of uncertainty in it, so far as the question here required to be considered. The words employed, “their entire output,” and “their minies” clearly import the operation of the mines of the Calhoun Mining Company, and that the defendant should take and pay for the out-put up to 100 tons per day. If it had been the purpose of the parties to contract for the sale and purchase of 100 tons per day of a certain quality absolutely, it would have been easy to express that purpose, and the language used in the contract would not have been employed to that end — indeed, the language employed, the terms used, is wholly inconsistent with such purpose and meaning.

If it be conceded that the defendant during the period covered by the contract, at times accepted deliveries on the contract, of ore not the out-put of the mines of the Calhoun Mining Company, without more this would not bind the defendant to continue to receive such ore in performance of the contract. It could as reasonably be contended that, because defendant received and paid for ores of a quality inferior to the contract standard, it thereby obligated itself to continue during the life of the contract to receive and pay for inferior ore. But in this case, according to the special finding of the court, the defendant did not know until about October 15th that George C. Jones, who was in fact the Calhoun Mining Company, was buying the ore he was delivering under the contract, and on the 19th of October, defendant notified him, that it would not receive any more ores under the contract.

The rulings of the- trial court áre in accord with the views we have expressed. The result of the trial court’s finding of facts, was, that there had been no breach in the contract by the defendant and judgment was rendered accordingly, and in all of which we concur.

The judgment appealed from will be affirmed.