Johnson v. Shook & Fletcher Supply Co.

• Decision Date: 13 January 1944
• Docket Number: 6 Div. 79.
• Court: Alabama Supreme Court
• Parties: JOHNSON et al. v. SHOOK & FLETCHER SUPPLY CO. et al.

16 So.2d 406

245 Ala. 123

JOHNSON et al. v. SHOOK & FLETCHER SUPPLY CO. et al.

6 Div. 79.

Supreme Court of Alabama

January 13, 1944

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Count 4 of the complaint is as follows:

"Count Four

"Plaintiffs claim of the defendants the sum of One Hundred and Fifty Thousand Dollars ($150,000.00), as damages, for the breach of an oral agreement entered into by the defendants with the plaintiffs in Jefferson County, Alabama, on or about December 9, 1940, by the terms of which agreement the defendants agreed to mine and deliver to the washer, hereinafter described, all the mineable ore, to-wit, (2,500,000) two million and five hundred thousand tons located in, under, or upon Sections 10, 11, 15, 21 and 22, Township 16, Range 1 West, Jefferson County, Alabama, and the plaintiffs agreed to haul all of the ore to-wit two million five hundred thousand (2,500,000) tons from the washer operated by the defendants located near the Trussville-Chalkville Public road and about three miles Northwest from the Town of Trussville, to the crusher operated by the defendants, located about one block East of the Depot and on the Alabama Great Southern Railroad in the Town of Trussville, Alabama, being a distance of about 3 miles, and plaintiffs agreed, for such purpose, to furnish four or more new trucks with steel dump bodies, and the defendants further agreed to pay the plaintiffs the sum of (15¢) per ton for such haulage by the plaintiffs. Plaintiffs further aver that all of the aforesaid agreements by all parties were to be performed within a reasonable time from the date of said agreement.

"Plaintiffs aver that the plaintiffs and the defendants, on or about December 9, 1940, entered upon the mutual performance of said agreement, and that the plaintiffs, since said date in the performance of their said agreement hauled from said washer to the crusher approximately 24,000 tons of said ore, and that the defendants in the part performance of their said agreement paid to plaintiffs the said sum of fifteen cents (15¢) per ton for the hauling thereof. Plaintiffs further aver that thereafter, on, to-wit: March 31st, 1941, the defendants breached their said agreement with the plaintiffs in this: Said defendants refused to permit the plaintiffs to continue, and do yet refuse to perform their part of said agreement to permit the plaintiffs to haul said ore as aforesaid, and refuse and fail to pay the plaintiffs as agreed upon in the aforesaid agreement.

"Plaintiffs further aver that they were, on the 31st day of March, 1941 and continuously since said time, ready, willing and able to perform their duties according to the tenor and terms of said agreement.

"Plaintiffs aver that the cost to them of hauling said ore from the said washer to the said crusher was nine cents (9¢) per ton leaving a profit to them of six cents (6¢) per ton, and further aver that there remained on said property yet to be hauled under the terms of said agreement approximately 2,400,000 tons of said ore, upon which the reasonable profit to the plaintiffs would have been $144,000.00, which profit was lost to the plaintiffs as a proximate consequence of the breach of said agreement by the defendants.

"Plaintiffs further aver that after entering into the performance of said agreement, and in accordance with the terms thereof, it became and was necessary for plaintiffs to purchase 3 new trucks with steel dump bodies, the necessity of the purchase thereof by the plaintiffs was well known to the defendants, at the time said agreement was entered into and, as a proximate consequence of defendants' said breach of said contract, plaintiffs sustained further damages in the amount of $2,500.00 in the depreciation of the value of said trucks and said dump bodies."

The following are pleas filed by defendants to the complaint as amended:

"4. The contract sued upon is void under the statute of frauds in that the contract sued upon by its terms is not to be performed within one year from the making thereof and said contract was not in writing and no note or memorandum thereof expressing the consideration was in writing and subscribed by the party to be charged therewith or by some other person by it thereunto lawfully authorized in writing.

"7. That under the terms and provisions of the contract sued upon defendants had the right to cancel said contract, and defendants aver that pursuant to said right, they cancelled said contract and gave the plaintiffs due notice of such cancellation on or about April 1, 1941.

"8. Defendants aver that under the terms and provisions of the contract sued upon, defendants had the right to cancel said contract if at any time the hauling done under said contract was not done in a satisfactory and efficient manner, and defendants aver that the hauling done under said contract by the plaintiffs was not done in a satisfactory and efficient manner in that plaintiffs failed to have or to keep sufficient trucks and other equipment on the job to enable the plaintiffs to haul the ore and failed to keep their trucks and equipment in reasonable repair and reasonably manned so as to enable plaintiffs to comply with the terms of said contract, and defendants further aver that as a result thereof, exercising their rights under the terms of said contract, they cancelled said contract and gave the plaintiffs reasonable notice of such cancellation on or about April 1, 1941.

"9. Defendants further aver that under the terms and provisions of the contract sued upon, plaintiffs agreed to haul said ore in a manner and in quantities satisfactory to defendants, and further agreed to furnish a sufficient number of trucks in a reasonably proper state of repair and reasonably manned so as to haul the quantity of ore which defendants' business contemplated hauling or required to be hauled, and defendants aver that plaintiffs breached said contract in that they failed to have or to keep sufficient trucks and other equipment on the job to enable the plaintiffs to haul the ore and failed to keep their trucks and equipment in reasonable repair and reasonably manned so as to enable plaintiffs to comply with the terms of said contract.

"12. The contract sued upon is void under the statute of frauds in that it was not possible for the contract sued upon to be performed within one year from the making thereof and said contract was not in writing and no note or memorandum thereof expressing the consideration was in writing and subscribed by the party to be charged therewith or by some other person by it thereunto lawfully authorized in writing in that the washer as described in the complaint and located as alleged in the complaint and through which the defendant agreed pursuant to the terms of the contract sued upon, to deliver to the plaintiff the ore taken from the lands described in the complaint for hauling by the plaintiffs to the crusher as described in the complaint and located as averred in the complaint, at its maximum capacity could not wash and deliver to plaintiffs for hauling in excess of seventy-five hundred tons of ore per month; wherefore defendant avers that by a fair and reasonable interpretation of the terms of the contract used by the parties, such terms being as stated in the complaint, and in view of the circumstances existing at the time as above set forth, said contract could not have been performed within a year from the time of its making, and such was the agreement of the parties in that the contract could not be performed within such year. Defendant further avers that under such circumstances and by a fair and reasonable interpretation of the terms used by the parties in the making of said contract, it would have taken approximately twenty-eight years for the defendant to mine and deliver through said washer to the plaintiff and the plaintiff to haul to the crusher the two million five hundred thousand tons of ore pursuant to the terms of said contract as alleged in said complaint and in this plea.

"13. The contract sued upon is void under the statute of frauds in that it was not possible for the contract sued upon to be performed within one year from the making thereof and said contract was not in writing and no note or memorandum thereof expressing the consideration was in writing and subscribed by the party to be charged therewith or by some other person by it thereunto lawfully authorized in writing in that the washer as described in the complaint and located as alleged in the complaint and through which the defendant agreed, pursuant to the terms of the contract sued upon, to deliver to the plaintiff the ore taken from the lands described in the complaint for hauling by the plaintiffs to the crusher as described in the complaint, and located as averred in the complaint, at its maximum capacity, could not wash and deliver to plaintiffs for hauling in excess of seventy-five hundred tons of ore per month, and defendant further avers that plaintiffs with the equipment which they had as described in said complaint could not have hauled as a maximum more than seventy-five hundred tons of said ore per month; wherefore defendant avers that by a fair and reasonable interpretation of the terms of the contract used by the parties, such terms being as stated in the complaint, and in view of the circumstances existing at the time as above set forth, said contract could not have been performed within a year from the time of its making. Defendant further avers that under such circumstances and by a fair and reasonable interpretation of the terms used by the parties in the making of said contract, it would have taken approximately twenty-eight years for the defendant to mine and deliver through said washer...