American Oak Extract Co. v. Ryan

• Citation: 104 Ala. 267,15 So. 807
• Parties: AMERICAN OAK EXTRACT CO. v. RYAN.
• Decision Date: 21 June 1894
• Court: Supreme Court of Alabama

15 So. 807

104 Ala. 267

AMERICAN OAK EXTRACT CO. v. RYAN.

Supreme Court of Alabama

June 21, 1894

Appeal from circuit court, Morgan county; H. C. Speake, Judge.

Action by F. M. Ryan against the American Oak Extract Company. There was a judgment for plaintiff. Defendant appeals. Reversed.

This was an action brought by the appellee, F. M. Ryan, against the American Oak Extract Company, to recover an amount alleged to be due the plaintiff for 50 cords of wood, under a contract, alleged to have been made with the defendant. There are four counts in the complaint. The first is on an account alleged to be due on the 1st day of October, 1891. The other three are on a contract, not differing, except that each is fuller in its statement than the preceding one, but each the same in substance and effect. The first and second were demurred to, and the demurrers were overruled. Afterwards the third and fourth were added, by leave of the court, and these were demurred to also, and the demurrers were overruled. The gravamen of the complaint is, that on or about the 12th of August, 1892, the plaintiff, F. M. Ryan, and J. J. Ryan entered into a contract with the defendant, whereby it was agreed that defendant would take from plaintiff and John J Ryan 50 cords of wood at the price of $2.50 a cord if they would deliver said wood at a convenient point on the bank of the Tennessee river, in Morgan county, the defendant to furnish a barge, on which the wood was to be loaded, and plaintiff and said John J. Ryan were to load said wood upon said barge. It is averred, that after said contract was made said John J. Ryan sold to the plaintiff all the right and interest he had in said contract, made as aforesaid with the defendant; that plaintiff cut said 50 cords of wood, and placed it at a convenient place on the bank of the Tennessee river, in all respects as he has contracted to do, and notified defendant that said wood had been cut, and where it had been placed on the bank of said river, and requested defendant to send a barge for it, as it had contracted to do but defendant failed and refused to send a barge on which to load said wood, and failed and refused to take and receive said wood, and to furnish a barge for the same, and the wood was destroyed and lost to the plaintiff, whereby he was damaged $125, for which he sues. A demurrer was interposed to these counts and overruled. The defendant then pleaded to the second, third, and fourth counts of the complaint, setting up, "that, if it ever made any such contract as alleged in the complaint, at the time plaintiff claims to have demanded of it, a barge, on which said wood was to be loaded, the Tennessee river, upon which said barge was to be floated, to the point where said 50 cords of wood is alleged to have been placed, was too low to permit the furnishing of said barge by the defendants for the purpose of loading said wood until after the said wood had been destroyed; that the barge was to have been furnished, if furnished at all, from the works in New Decatur, Ala., by defendant, and that, by reason of the low stage of the water in said river, it was impossible for defendant to furnish said barge; that by said alleged contract, the barge was to be furnished only in the event the condition of the river should be such that the said barge could be floated at and after that time, and the plaintiff should notify the defendant that he had as much as 50 cords of wood at some point on the Tennessee river, to be loaded on said barge." The plaintiff demurred to specified parts of said special pleas, which was overruled. Thereupon the plaintiff replied to said pleas in substance,-the first replication denying the allegation that plaintiff was to furnish and load said wood on the barge only in the event and when said river was in such condition as that the barge could be floated thereon; second, that defendant refused to take said wood and furnish said barge, on the ground that it had no such contract, and thereby waived its plea of inability to place said barge on the Tennessee river on account of the condition of said river, if such condition was in the contract; third, that after the plaintiff had fully performed his contract with defendant, he notified defendant that the wood was ready to be loaded on a barge, and requested defendant to furnish a barge, but defendant declined to furnish one, upon the express ground that the works of defendant were shut down for repairs, and defendant said nothing about the river being in such a condition that a barge could not be placed for said wood thereon, or that said river was at low water. Wherefore plaintiff avers that defendant waived any condition in the contract, if there was any such condition therein, exonerating defendant from placing said barge at said point, or taking said 50 cords of wood, as is averred in the complaint. On this replication issue appears to have been joined. To the original and amended complaints the defendant also pleaded that the allegations of said complaint are untrue.

The evidence tended to show that a few days prior to the 14th of August, 1892, one E. M. Russell had a conversation with J. J Ryan, who was a brother of plaintiff, in which said Ryan requested him (Russell) to see the managing agent of the defendant, and to ascertain from him whether he (Ryan) could sell the defendant some chestnut oak wood, and what it was paying for it; that on the morning of the 14th of that month, at the breakfast table at the tavern in Decatur, he (Russell) met Harvey Lewis, the secretary and general manager of the defendant, who, as was shown, had the right to contract for the purchase of wood for defendant, and said to him that he had a friend in the country, who desired to sell to the defendant some chestnut oak wood; that he asked said Lewis what the defendant was paying for it, and Lewis replied, "$2.50 per cord"; that whenever his friend would place upon the bank of the river as much as 50 cords or 100 cords, at a convenient place where a barge could be landed for the purpose of loading, and would notify him, that he would have their steamboat drop a barge down where it could be loaded thereon; that he did not remember positively whether he stated the name of the party desiring to sell the wood or not, but his best recollection was that he told him it was Mr. Ryan; but Mr. Lewis testified that his best recollection was that the name of the party was not given. Russell also testified that, according to the best of his recollection, nothing was said about the stage of the water in the Tennessee river having anything to do with the ability of defendant to place the barge upon which the wood was to be loaded, and that Lewis told him that when the wood was loaded upon the barge the defendant would pay $2.50 per cord therefor; and he immediately notified Ryan of the terms and conditions of Lewis' offer. There was no conflict in the evidence as to plaintiff's having delivered the 50 cords of wood at a place on the river known as "Simpson's Field," in Morgan county, about six miles above Somerville; that the had bought out his brother's interest in the wood, and became sole owner...