69 So. 514 | Ala. | 1915
Suit by appellee against the appellant for the recovery of damages growing out of the breach of a contract for the sale of three cars of cotton seed, which was agreed by the appellant to be sold to the appellee at the price, fixed in the contract, of $22 per ton, f. o. b. Wetumplca, Ala. One car of cotton seed having been sold and delivered under the contract, the complainant seeks damages for a failure and refusal on the part of defendant to sell and deliver the two remaining cars. Judgment was for the plaintiff, from which the defendant prosecutes this appeals. There were demurrers to the complaint, which were overruled, and this action of the court constitutes assignments of error 9 and 10. These assignments, however, are not argued in brief of counsel for appellant, and are therefore considered as waived.
The evidence for the plaintiff went to show that through its agent a contract was entered into between it and the defendant on November 7, 1912, for the purchase by the plaintiff from defendant of 3 nars of cotton seed at- the price of $22 per ton, f. o. b. Wetumplca. Among other things provided by the contract was the stipulation that the weights of the Cotton Seed Products Company, of Louisville, Ky., should govern all settlements. The contract was in writing, and provid
We are of tke opinion tkat it is too clear for argument tkat tke evidence was sufficient to warrant tke submission to tke jury of tke question of tke autko-rity of BroAvn to execute tke contract sued on in tliiscase. — Buist v. Guice, 96 Ala. 225, 11 South. 280; Patterson v. Neal, 135 Ala. 477, 33 South. 39; 31 Cyc. 1263-1349.
The defendant had denied that the contract was binding upon him. The statement shows an agreement of sale of three cars, and a shipment of only one, and a clemand for the payment of the difference in price of the seed. To this demand, and the letter with which the statement was inclosed, the defendant made no reply. In addition to this, the statement shows the price paid for the seed at Athens; and the testimony of plaintiff tends to show that this price was the lowest ait which the seed could be bought in any market. This was evidence tending to show the market value of the seed. — Ward v. Reynolds, 32 Ala. 384; Hardwick v. Am. Can. Co., 113 Tenn., 657, 88 S. W. 797.
And again, in the same authority: “Where the goods are sold by the Tar load/ the term may be construed by the custom of trade; but in the absence of any agreement, or particular custom, it will ordinarily be held to mean the capacity of a car used for transporting the particular kind of goods sold. So, too, a sale of a ‘cargo’ of goods means ordinarily the entire load of the vessel, and is limited only by the capacity of the vessel.” Page 210.
See, also, 1 Words and Phrases, 970.
As hereinbefore stated, the evidence of the price which plaintiff paid in the open market, in connection with the testimony showing it was the lowest price at which the seed could be bought in any market, Avas sufficient for submission of the question to the jury as to the market value of the seed, at that time, both at Wetumpka, Ala., and at Louisville, Ky., and nothing tended to shoAV any different market value elsewhere; and the verdict of the jury did not exceed the amount fixed by this uncontradicted evidence. It is immaterial, therefore, under the undisputed evidence in the case, whether, for the purpose of fixing the measure of damages, the place of delivery be at Wetumpka or at Louisville. We therefore conclude that in this part of the oral charge there was no error of which this appellant can complain. If there Avas error at all (which Ave leave undecided), it Avas error Avithout injury.
What is here said also has application to charge 3, refused to defendant. If it be conceded that charge 3 stated a correct proposition of law as a general rule, yet, for reasons above stated, its refusal was clearly
Finding no reversible error, the judgment of the court below is affirmed.
Affirmed.