52 So. 904 | Ala. | 1910
After eliminating the evidence, to be later mentioned, illegally admitted, these conclusions result from the substantially undisputed proof in the cause: That defendant agreed to buy and the plaintiff -agreed to “deliver f. o. b. North Birmingham,” shipments to be made during the month of September, 1907, five cars of foundry hay; that the cars were shipped either during the last days of August or the first days of .September; that three of them were accepted and paid for by defendant; that the shipments as shown by bills of lading, were made direct to the sender; that on September 2d defendant informed plaintiff that the two cars in question would not be received or paid for; that plaintiff insisted upon defendant’s acceptance of the cars and payment therefor; that on October 26th by letter, defendant notified plaintiff that it was “short” the two cars involved here, and requested that they be “traced” and “delivery of same” be shown; that these cars reached North Birmingham on October 7th; that on October 31st a letter was written by defendant to ■plaintiff, whether posted or not was not shown by any witness having knowledge of that fact, stating that these 'cars, had been so long in reaching defendant that it had
If the conduct of defendant had stopped with the breach of the agreement wrought by the notification of September 2d, there would be no hesitancy in holding-that the plaintiff’s remedy was for damages for the-breach and not for the agreed price. But it is evident from the letter of October 26th, quoted above, that the-defendant recanted and expressly recognized the agreement as existent, and, on the other hand, in effect with- ■ drew is communicated desire and intent to countermand the order with respect to these cars and to refuse to - accept them. Whatever may have been the reasons for-this clear change of purpose, as evinced by the notification of September 2d and the letter of October 26th, the effect was to remove the status created by notifica- ■ tion of September 2d. Obviously, if the plaintiff so desired, and the record shows such to have been the case, to waive the breach and to let the agreement stand as if the notification had not been given, the defendant had not nor has any right to complain. At the time this letter of the 26th was sent these cars were at the point of delivery, and so within the terms “free on board”'; and we can see no escape from the conclusion that the writ
Reference to the contract as herein above stated must convince that the agreement to ship “during the month of September” was complied with by plaintiff. So far, then, as “delay” was concerned, that was not and could not be ascribed to shipment, but to transportation. If it be assumed that the agreement contemplated delivery f. o. b. North Birmingham, within a reasonable time, the defendant here certainly cannot appropriate the objection of “delay” when previous to the announcement of that objection the hay had been delivered f. o. b. North Birmingham, and also previous thereto defendant had expressly recognized the continuing binding-efficacy of the contract by writing the plaintiff that it was “short” the cars in question, and requesting a “tracer” and a showing of “delivery” thereof. In other words, the letter of October 26th confirmed, notwithstanding- the notification of September 2d, the contract, and when that ivas effected the agreement had been performed by plaintiff, and so 24 days previous to the writing of the letter of October 31st, wherein the objection of “delay” was first mentioned. If the defendant would have availed of that objection to the reception of the hay, it should not have written plaintiff with a. view of hastening delivery, and that at that date (October 26th) it still regarded the contract as unavoided by any act or omission of the plaintiff; the goods then having been delivered f. o. b. at North Birmingham. But the defendant insists that the cars were not consigned to de
The other objection as to the drafts, drawn by plaintiff upon defendant, need not be considered, since the defendant rests its sole right to avoid the recovery of
The judgment is reversed. Proceeding to render the judgment the trial court should have rendered, it is ordered and adjudged that the plaintiff have and recover of the defendant the sum of $>497.26, principal and interest due it to the date of this judgment.
Reversed and rendered.