Alabama Chemical Co. v. Geiss

• Decision Date: 07 June 1905
• Parties: ALABAMA CHEMICAL CO. v. GEISS.
• Court: Alabama Supreme Court

39 So. 255

143 Ala. 591

ALABAMA CHEMICAL CO. v. GEISS.

Supreme Court of Alabama

June 7, 1905

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

"To be officially reported."

Action by Joseph Geiss, doing business as the Alabama Lumber Company, against the Alabama Chemical Company to recover for goods sold. From a judgment for plaintiff, defendant appeals. Affirmed.

Defendant pleaded a special plea of set-off, as follows: That at the time of the bringing of the action plaintiff was indebted to defendant in the sum of $2,000, for that, after defendant entered into a contract with plaintiff, by which plaintiff was to deliver defendant certain lumber in the city of Montgomery, to be used by defendant for the erection of its fertilizer plant, defendant on the following day contracted with other persons for the erection of said plant, and that it was known to plaintiff at the time the lumber was purchased that it was to be used for the erection of said plant, and that defendant contemplated contracting with other persons for the erection thereof; that plaintiff agreed to deliver the lumber at the rate of 12 cars a week, which he failed to do, and that upon such failure he was notified that the defendant's contractors had quit work on account of not having the lumber, and that defendant would go into the market and buy the necessary lumber, and charge plaintiff with the difference in price, and that plaintiff requested defendant not to do so, stating that he would speedily deliver the lumber, and that, relying upon such statement and request, defendant did not purchase the lumber in the market that it was impossible to obtain lumber of the size and character contracted for in the city of Montgomery, and that it would have taken some time to have obtained it from a distance; that by reason of the delay defendant had to excuse its contractor from a forfeiture of $25 per diem for 40 days for failure to complete the plant within a certain time, and was thereby prevented from manufacturing fertilizer for six weeks, and was greatly hindered in the prosecution of its business and earning interest on amount, $100,000, invested in said business. The plaintiff demurred to the special plea on the ground that the damages claimed were remote speculative, and contingent, and not within the contemplation of the parties. The court sustained the demurrer.

Horace Stringfellow, for appellant.

Ray Rushton, for appellee.

SIMPSON J.

The damages set forth in the plea of defendant in this case are speculative and too remote. The decisions of this court have settled the proposition that for the breach of a contract to sell and deliver personal property the measure of damages is the difference between the agreed price and the price at which similar property could be purchased in the market, and that losses sustained by the purchaser by reason of his failure to realize profits on contracts which he entered into on the faith of receiving the personal property bought are too remote, conjectural, and speculative to be recovered. McFadden & Bro. v. Henderson, 128 Ala. 223, 29 So 640; Watson v. Kirby, 112 Ala. 436, 20 So. 624; Nichols v. Rasch, 138 Ala. 372 Watson v. Kirby,

112 Ala. 436, 445, 20 So. 624, 627, in which recoupment was claimed for failure to deliver logs which had been purchased, the court, holding that it was the duty of the defendants to go into the market and purchase other logs, and claim only the difference "if it was practicable," goes on to state that, if the mill was forced to remain idle for 10 days, the general profits for so short a time are too speculative. In the case of McFadden v. Henderson, 128 Ala. 235, 29 So. 640, the court does state, as counsel for appellant notes, that, where the purchaser cannot go into the market and purchase the goods, the reason of the rule ceases; but that does not mean that, necessarily, speculative damages must be allowed, but only that other means must be adopted for ascertaining what the actual damages was for the nondelivery of the goods. And, again, in this case, there is no allegation that the goods could not be obtained, but only that the plaintiff continued to assure the defendant that he would deliver the lumber, and defendant relied on it. The assurance that he would deliver was no more than a repetition of the original promise to deliver, and did not change the contract nor authorize any different measure of damages.

Appellant claims that this court, in the case of Nichols v Rasch, 138 Ala. 376, 35 South, 409, intimates that, if the stopping of the mules, men, and teams in that case had been alleged as the basis of the claim for damages, the party could have recovered, and that the damages claimed by appellant in this case are analogous. Even if this court were bound by the intimation in that decision, which it is not, it may be remarked that the contract in that case was...