56 So. 826 | Ala. Ct. App. | 1911
To the complaint in detinue in this case, the defendant (the appellee here) pleaded the general issue and several special pleas, alleging that the machinery sued for a\ as acquired by the defendant under a contract for the conditional sale of it by the plaintiff, and setting up several matters by way of recoupment and also filed a suggestion, as provided for by statute (Code, § 3789), averring that the machinery sued for was sold by the plaintiff by a contract of sale, by Avhich the plaintiff reserved to itself title to said machinery until the purchase money should be fully paid, that a named part of the purchase price had been paid, and requiring the jury to ascertain the balance of such purchase price. The plaintiff joined issue on the pleas, and also filed special replications to the special pleas, and the defendant joined issue on the special replications, demurrers to Avhich had been overruled, and also filed a special rejoinder thereto. The plaintiff appeals from the judgment in its favor; the judgment being unsatisfactory to it in its ascertainment of the amount of the unpaid balance of the purchase price of the machinery.
The only rulings on the pleadings AAdiich, in the argument of the counsel for the appellant, is insisted on as being erroneous is the overruling of its demurrers to the special rejoinder to its special replications A, as amended, ancl.X. Each of those replications averred that the sale and delivery of the machinery in question were under a Avritten contract, which was set out, and
This being true, the defendant Avas never put to the proof of its special rejoinders. As the plaintiff could not sustain by evidence the allegations of its special replications, it could not have been injured by the ruling on the demurrers to the rejoinders to- those replications, hoAvever erroneous that ruling may have been. Evidence to sustain the special replications having been lacking, it is unnecessary to inquire whether or not the
The defendant was not put to a reliance alone upon its special pleas to support evidence introduced as to matters of recoupment against the claim of the plaintiff. Under its suggestion requiring the jury to aseeriain the balance of the purchase price owing on the machinery sued for, evidence as to such matters of defense go< ing to a reduction of the claim of the plaintiff was proper for the consideration of the jury, though they were not specially pleaded.—Hooper & Nolen v. Birchfield et al., 115 Ala. 226, 22 South. 68.
The defendant introduced evidence tending to show that there was delay by the plaintiff in shipping the machinery as it undertook to do by the modified agreement made after the fire. In this connection proof was made of the receipt by the defendant, on July 20, 1906, of a bill-of lading fur a car said to contain a part of the machinery. A witness for the defendant was asked a question which sought tc elicit proof that the loading of that car by the plaintiff had not in fact been completed on July 22d. The plaintiff objected to the question, on the ground that any damages accruing as a result of the delay after July 20th was occasioned by the railroad company, and that the plaintiff was not liable for damages caused by delay after the date of the issuance of the bill of ladling. • It was not error to overrule this objection. The obvious purpose of a stipulation for a shipment of goods within a stated time is to secure their
Charge 4, given at the instance of the defendant stated a predicate for a finding by the jury in favor of the defendant. As the jury did not'so find, but, on the contrary, rendered a verdict in favor of the plaintiff, the latter cannot now sustain a claim that it was injured by the giving of that charge. On the same ground, the assignment of error based-on the giving of the defendant’s written charge 14 must be disposed of adversely to the appellant.
There was evidence tending to show that at the time ihe original contract was entered into, and also when it was modified after the fire, the purchaser made known to the seller that the sawmill contracted for was wanted at once, for the purpose of sawing a large number of logs which the purchaser then had in its yard at Brown’s} Ferry ready to be sawn into lumber; that the logs were then in good condition, but the seller was informed of the purchaser’s fear that they would be damaged if they remained exposed to the winds and weather and insects during the. summer months; that the stipulation for prompt shipment of the machinery was entered into with this situation in contemplation by both parties to
From the evidence above referred to, it is plain that this is a case of a contract entered into under special circumstances within the contemplation of both parties to it, so that the seller, if he was at fault in supplying the machinery at the time stipulated for was liable for whatever damages the purchaser sustained which were the reasonable and natural consequences of a breach of the contract in that respect under the circumstances so known and with reference to which the parties acted.— Bixby-Theison Lumber Co. v. Evans, 167 Ala. 431, 52 South. 843, 29 L. R. A. (N. S.) 194; American Express Co. v. Jennings, 86 Miss. 329, 38 South. 374, 109 Am. St. Rep. 708. That damages to the logs, caused by worms and continued exposure to the weather, were, under the circumstances, to be regarded as within the contemplation of the parties is a conclusion supported by well-considered rulings on quite analogous states of fact. In the case of Smeed v. Foard, 1 E. & E. 609, the purchaser of a steam, threshing machine, which the seller failed to deliver at the time stipulated in his contract, claimed damages because of the injury by a thunderstorm of the wheat which he had expected to thresh with the machine. In reference to this claim, Lord Campbell, O. J., said: “The plaintiff, who was a large farmer, was known by the defendant to be accustomed to thresh out his wheat in the field; he gave the order for the threshing
Therefore, as respects those items for which the plaintiff claims damages as resulting from the falling of the rain, 1 am of opinion that he is entitled to recover.” In the case of Van Winkle & Co. v. Wilkins, 81 Ga. 93, 7 S. E. 644, 12 Am. St. Rep. 299, the seller of a cotton seed oil mill was held liable to the purchaser for damages sustained by the latter from the decay or deterioration of cotton seed that had been purchased for use in the mill, consequent upon the delay of the seller in supplying the machinery at the time stipulated for. In view of the special circumstances above referred to, the plaintiff’s contract is to be regarded as not simply a. contract to ship a sawmill; it also involved an undertaking to make the shipment; within a specified time, so as to afford to the purchaser the opportunity of sawing the logs before damages had been sustained in consequence of anticipated lujuries to which they would be exposed in the event of delay in the shipment of the machinery; and damages from that .source, consequent upon delay in the shipment, are to be regarded as such as might be expected to follow a breach of- the provision as to time
Rut it is suggested that the damages to the logs, caused by worms and continued exposure, were speculative in their nature, and so conjectural that evidence could not furnish a legally satisfactory basis for their ascertainment. Attention is called to the fact that the evidence indicated that the worms had already commenced to do some damage at the time when the sawmill could have been put in operation, if it had been shipped as provided for by the contract. The evidence was such as to warrant the conclusion that hut a trivial amount of the damage had been done at that time, and that the hulk of the injury from this source was a conseqnence of the subsequent delay in sawing the logs. A party who has broken his contract cannot escape liability because of the difficulty there may be in finding a perfect measure of damages. It is enough if the evidence furnishes data for an approximate estimate of the amount of damage. 3 Sutherland on Damages (3d Ed.) § 704; 13 Cyc. 37. It cannot fairly be said that the evidence in this case did not furnish a basis for an estimate, reasonably approximating accuracy, of the extent of injury to the logs, caused by worms and exposure to the weather, after the date when the purchaser should have received the machinery. What has been said above indicates the ground of the conclusion reached, that the court was not in error in admitting the evidence objected to, or in refusing to give charges 1, 2, 3, 6, 7, and 8 requested by the plaintiff.
It is urged in argument that there should be a reversal of the judgment because the court gave to the jury contradictory and inconsistent instructions. It is questionable whether this point is raised by any of the assign
From what already has been said, it is apparent that the conclusion was warranted by the evidence on both sides' that the modifications of the'contract agreed to by the parties after the fire were such as to make it a new contract as to tin1 feature of it referred to in charge 16, given at the instance of the defendant, as bearing upon the latter’s claim to damages. This being true, the plainLiff could not have been prejudiced by the giving of that charge. Certainly, under the contract as modified after the fire, the occurrence of that fire could not have constituted an excuse for a subsequent failure of the plaintiff to comply with its substituted undertaking to ship different machinery.
The assignment- of error based upon the refusal to-give charges 17 and 18, requested by the plaintiff, may be disposed of by pointing out that the bill of exceptions does not show that either of those charges was in writing, as the statute Code, § 5364) requires in the case of charges moved for by either party.
What has been said disposes of all the assignments of error which have been insisted upon in the argument in behalf of the appellant.
Affirmed.