59 So. 455 | Ala. | 1912
In count 1 of the complaint, appellant sought to recover of appellee the agreed purchase price of a dry kiln apparatus// Count 2 may be laid out of
A number of artificial rules, which are considered to be of service on most occasions of this sort, were formulated by this court, in Keeble v. Keeble, 85 Ala. 552, 5 South. 149, in substantial consonance with their statement in the books generally. Of course, the object of all interpretation of written instruments is to determine the real intention expressed by the parties. In respect of whether the parties intend by an agreement for fixed damages to secure the pound of flesh, or only just compensation for a breach, the law courts, acting on that principle of equity which looks to intent, rather than outward form, have long denied conclusive effect
Apart from its undertaking to pay the agreed price upon a favorable issue of the test, defendant’s obligations under the contract are to be found in two different subsidiary and collateral stipulations incorporated into the writing to serve two distinct purposes, to wit: A test of the apparatus under agreed conditions; a prompt return of the material of the apparatus if it should fail. But the damages for a breach of either ivas fixed at a sum- specified, and called “liquidated.” The necessary effect of counts 3, 4, and 5 is to treat the contract as not having been so far executed as to vest in plaintiff a right to the agreed purchase price. That phase of plaintiff’s case was stated in count 1, as to which the ruling was favoiable to plaintiff. The counts now in question claim, as we have in effect said, not the agreed price of an apparatus delivered, tested, and found efficient according to agreement, but an equivalent sum as liquidated damages for alleged breaches of stipulations intended to secure immediately things other than the payment of the purchase price. It does not appear that the considerable consequences to plaintiff of a breach of either of the special collateral stipulations to furnish steam at the required pressure, a breach of which is alleged in count 3, or to load upon the cars in good order within 10 days after rejection, a breach of which is averred in counts 4 and 5, were different, or that they were wholly uncertain, or incapable of being ascertained save by conjecture. In either case, under the contract, defendant forfeited the right to return the apparatus, which means, of course, that plain
In the cases on this subject, we find that* as against the term used in describing damages for a breach of contract, preponderant weight and influence has been given to the ease or difficulty of measuring the consequences of the breach. This court, in Henderson v. Murphree, 109 Ala. 556, 20 South. 45, quoted a note to Wood’s Mayne on Damages, to the effect that when the damages are certain and susceptible of ready ascertainment the sum fixed upon will be treated as a penalty. And again in the same case: “Where a sum of money, whether in the name of a penalty or otherwise, is introduced into a covenant or agreement merely to secure the enjoyment of a collateral object the enjoyment of the object is to be considered as the principal intent of the deed or contract, and the penalty only an accessary, and therefore only to secure the damages really incurred.” Prom test 5 laid down in Keeble v. Keeble, supra, may be extracted the converse proposition: Where the agreement is for the performance of an act, and the precise damage resulting from a breach is wholly uncertain, or incapable of being ascertained save by conjecture, the parties may agree on a fixed sum as liquidated damages, and the courts will so construe it, un
. Appellant suggests that defendant also acquired a license to use the apparatus, which was patented, and that the damage to .plaintiff on this account could not be estimated. There is no merit in the suggestion. Whether it be considered that defendant, as a result of its alleged breaches of the agreement, was required to keep merely the material — as the parties considered would be the case in the event the apparatus failed to stand the test — or, in the event of no test, an organized apparatus, though, possibly, wholly worthless to the defendant for its purposes, plaintiff parted with nothing more than the machine; for, on whatever consideration defendant acquired the material or the machine, the necessary implication was that it had the right to make use of it.
No actual damages were alleged in the counts under consideration. We are therefore of opinion that the demurrers were properly sustained.
The trial being had on the case as stated in count 1, by agreement of the parties, as the judgment entry shows, defendant pleaded “the general issue, with leave
The questions asked of Williams, to which the court sustained defendant’s objections, did not call for an expert opinion in a proper case. They sought to have the witness state to the jury his opinion that the failure of the apparatus furnished by plaintiff to stand the test was to be attributed to defendant’s failure to supply steam at the agreed pressure, rather than to the inefficiency of the apparatus. That was the very question the jury were called to decide. And, so far as it de
Appellant requested the affirmative charge on the case as a whole and on count 1. • The argument for these charges and for error in their refusal shows that they were intended to assert the proposition that, upon defendant’s failure to return the aparatus within 10 days after its rejection, it became bound to pay the purchase price as claimed in count 1. But, as we have seen, this notion is based upon a false construction of the contract. These charges were properly refused.
Charges 4 and 5, given to defendant, correctly construed the contract, and had support in the evidence.
Reversed and remanded.
While the courts in England and in this country have formulated certain rules for determining whether the damages provided for the breach of contracts shall be construed as liquidated damages or “a penalty, yet the purpose of these rules is to ascertain what the parties intended ; and when their intention is clearly and explicitly expressed no court has the power to change the contract and make it express something that the parties did not intend. It is true that many courts have gone very far, in taking into consideration all the facts and circumstances, and in construing contracts to provide for penalties, where there are strong-expressions indicative of liquidated damages; and it is true that the mere use of those expressions does not always govern the construction of the contract, but no
But, aside from these principles, I hold that all men have the inalienable right to contract as they please, and when a contract is fairly and clearly made it is binding on both parties. ( “The contract is to govern; and the true question is, What was the contract? Whether it was folly or wisdom for the contracting parties thus to bind themselves is of no consequence, if the intention is clear. If there be no fraud, circumvention, or illegality in the case, the court is bound to enforce the agreement.” — 13 Cyc. 90, 91, and notes.
]_ This matter had the consideration of this court at an early day; and, while the able Chief Justice (Collier) made extensive reference to the English cases and the rules laid down, yet he shows clearly that all of those rules were for the purpose of ascertaining what was the intention of the parties. He says: “The first general principle in the construction of all contracts is that they should be so expounded as to carry into effect the intention of the parties.” — Watt’s Ex’rs v. Sheppard, 2 Ala. 425, 434, 444, 446.
In the other leading case of Keeble v. Keeble, 85 Ala. 552, 5 South. 149, this court, speaking through Somerville, J., said: “(1) The court will always seek to ascertain the true and real intention of the contracting
This court also said on this subject (Henderson v. Murphree, 109 Ala. 556, 20 South. 45) : “But it is agreed on all hands that, where the true intention of the parties, who are legally competent to contract, is clear and unmistakable, the courts will give it effect; *' * and courts will not relieve them from the hardships of hard or improvident bargains, if made.”— 109 Ala. 559, 20 South. 46. And, after stating certain rules, added: “But when the purpose is clear it is said there seems to be no reason to hesitate to give it effect.” —109 Ala. 561, 20 South. 47.
I think this court lost sight of these fundamental principles of law in the case of Mansur & Tebbetts Implement Co. v. Tissier Arms & Hardware Co., 136 Ala. 597, 33 South. 818.
This court also, in a recent case, said: “The first general principle in the construction of all contracts is that they shall be so expounded as to carry into effect
I think the contract in the present case is clear and definite, and there is no room for construing it to mean anything other than that which it states. I think, also, that it is not oppressive or unconscionable, but reasonable to the effect that the plaintiff sells the goods under a guaranty, but protects itself by providing that the defendant shall test the goods within a certain time, and, if they fail to come up to the guaranty, he is to reload them on the cars within 10 days thereby releasing himself entirely from the contract of sale; bnt if he does not do so he forfeits the right to return the goods, which means that he retains them on the contract of sale and pays the regular price for them.
It matters not whether it he called liquidated damages or a mere compliance with his contract, I think the defendant has bound himself to pay the amount claimed, and the court should so have declared. The court erred in sustaining the demurrers to the third, fourth, and fifth counts of the complaint.
I therefore concur in the reversal of the case; but, as some of the positions taken in the opinion are not in accordance with my views, I have thought proper to express them.