Southern States Co. v. Long

73 So. 148 | Ala. Ct. App. | 1916

BROWN, J.

(1-3) It is elementary law that a contract may be executed as to one of the parties and executory as to the other. — 9 Cyc. 244 (c). Where one of the parties to a contract has performed everything necessary to be done by him according to the terms of the contract, the contract, so far as that party is concerned, is executed and not executory — 6 R. C. L. 590, § 9; Denton v. English, 2 Nott & McC. (S. C.) 581, 10 Am. Dec. 638. Ordinarily, in the absence of special provisions, a contract of bargain and sale cannot be said to be an executed contract until the property in the thing sold passes from the seller to the purchaser. — Loval v. Wolf, 179 Ala. 505, 60 South. 298. When, however, it is stipulated otherwise, as that the goods are to be shipped seller’s order notify purchaser, and draft made with bill of lading attached, and it is the intention of the parties that title to the thing sold shall not pass until the draft is paid, the contract on the part of the seller becomes executed when the goods are delivered at the designated point, notice given of their arrival, and the draft with the bill of lading properly indorsed, is tendered to the purchaser for acceptance; and if the purchaser breaches the contract, by failing to accept the bill of lading according to the terms of the contract, the seller may rely on the breach and resell the goods at the purchaser’s risk. — Cleveland v. Heidenheimer (Tex. Civ. App.), 44 S. W. 551; Johnson v. Carden, 187 Ala. 142, 65 South. 813.

(4) Counts 1, 2, and 3 of the complaint aver: “That plaintiff shipped said goods in accordance with said contract to defendant, at Jasper, Ala.; that when said goods arrived at Jasper, Ala., defendant refused or failed to accept and pay for same. Plaintiff avers that it performed all of its part of said contract, and after the defendant refused or failed to accept and pay for said goods,” etc.

These averments affirmatively show that the plaintiff’s right of recovery is rested upon an executed contract on its part, and the defendant’s special pleas confess these averments and seek to avoid the plaintiff’s right of action by showing a waiver of this right of action by a subsequent contract.

(5, 6) In the absence of conduct creating an estoppel, it is essential to a waiver of an existing right under an executed contract that the agreement relied on as a waiver be supported by a valuable consideration. — Shriner v. Craft, 166 Ala. 146, 51 South. 884, 28 L. R. A. (N. S.) 450, 139 Am. St. Rep. 19; Johnson v. Sellers, 33 Ala. 265; Burkham v. Mastin, 54 Ala. 122; Clark v. Jones, 85 Ala. 127, 4 South. 771; Shapley v. Abbott, 42 N. Y. 443, 1 Am. Rep. 548; Ripley v. Ætna Ins. Co., 30 N. Y. 136, 86 Am. Dec. 363. And it is essential to a good plea setting up a waiver that it shows a contract supported by a sufficient consideration (Netvton v. Brook, 134 Ala. 269, 32 South. 722), or conduct on the part of the plaintiff through which he derived some benefit, or which induced the defendant to change his position to his detriment, constituting an estoppel against the plaintiff to claim the asserted right (Hastings v. Lovejoy, 140 Mass. 261, 2 N. E. 776, 54 Am. Rep. 462; Cooper v. Lindsay, 109 Ala. 338, 19 South. 379). When these principles are applied, we find that the defendant’s second, third, fourth, fifth, and sixth pleas were subject to the demurrers directed against them.

(7-9) By assuming to pay the demurrage charges as set forth in some of these pleas, the defendant assumed no new obligation. This liability resulted from the breach of the contract of sale (35 Cyc. 520 [VIII, D, 7, b] ; Vastory Clothing Co. v. Stadiem, 149 N. C. 6, 62 S. E. 778) ; and this would not constitute a consideration for such waiver (Shriner v. Craft, supra). And the pleas do not show that the contract of sale of the oats was intended by the parties to operate as a consideration for such waiver. The averments of the sixth plea as to the alleged waiver are but the conclusion of the pleader. — L. & N. R. R. Co. v. Calvert, 170 Ala. 565, 54 South. 184; B. R. L. & P. Co. v. Saxon, 179 Ala. 136, 59 South. 584. This plea is subject to the further objection, pointed out by the demurrer, that it does not show that the agent was authorized to bind the plaintiff by such contract. — Gulfport Fertilizer Co. v. Jones, infra, 73 South. 145.

(10) Pleas 7, A, B, and C merely set up the defendant’s version of the contract as to the sale of the' oats, and, if true, the plaintiff had not complied with the contract, and by the resale before the time for performance arrived it breached the contract. This could be shown under the general issue.

(11, 12) Whether the purchaser is entitled to notice of the seller’s intention to resell is a question that has been decided both ways in this state. — West v. Cunningham, 9 Port. 104, 33 Am. Dec. 300; Penn & Montgomery v. Smith, 98 Ala. 560, 12 South. 818; Johnson v. Carden, supra. The first case cited holds that notice is not essential to the seller’s right to hold the purchaser for the difference in the contract price, and the amount realized at the-resale, but the other, cases, which are more recent, hold that the purchaser is entitled to notice; but, as the failure to give notice only affects the measure of the plaintiff’s recovery, it is a fact that may be offered under the general issue.—Karter v. Fields, 130 Ala. 430, 30 South. 504; 2 Greenleaf, Evidence, § 625.

(13) While we do not see the materiality of the declaration of the defendant’s agent as to his power “to borrow money in the absence of his father,” the question with reference thereto was answered in the negative,- and no injury is shown as result-, ing from the ruling of the court on the appellant’s objection.

(14-16) The measure of damages sustained by the great weight of authority in such cases, is “the difference between the contract price and the price received on resale, and expenses of making the sale, and in addition, the cost of storage, interest, and an allowance for his time as agent in reselling (35 Cyc. 520-522) ; but our court has held an allowance “for the time and expense of the member of the [plaintiff] firm” is not reocverable. — Penn & Co. v. Smith, Grainger, & Cantrell, 93 Ala. 476, 9 South. 609. This rule is possibly sustainable on the theory that, when the plaintiff elects to resell the property, he is bound by the result, and is entitled to recover only the difference between the contract price and the price realized by the resale.

The holdings of the Supreme Court justify the giving of charges 8 and 9. Charge 10 ignored the plaintiff’s right to recover nominal damages. — Treadwell v. Tillis, 108 Ala. 262, 18 South. 886.

Reversed and remanded.