American Oak Extract Co. v. Ryan

• Decision Date: 23 June 1896
• Citation: 20 So. 644,112 Ala. 337
• Parties: AMERICAN OAK EXTRACT CO. v. RYAN.
• Court: Alabama Supreme Court

20 So. 644

112 Ala. 337

AMERICAN OAK EXTRACT CO. v. RYAN.

Supreme Court of Alabama

June 23, 1896

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

Action by F. M. Ryan against the American Oak Extract Company to recover an amount alleged to be due on a contract for the sale of wood. There was a judgment for plaintiff, and defendant appeals. Reversed.

This action was brought by the appellee, F. M. Ryan, against the American Oak Extract Company, to recover an amount alleged to be due plaintiff for 50 cords of wood, under a contract which it was alleged the defendant made with the plaintiff. The cause was tried upon the plea of the general issue, pleaded to the third and fourth counts of the complaint, which were as follows: (3) "The plaintiff claims of the defendant one hundred and twenty-five dollars damages for the breach of a contract entered into by plaintiff and John J. Ryan, and defendant on or about the 14th day of August, 1891, whereby it was stipulated and agreed that defendant would take from plaintiff and John J. Ryan fifty (50) cords of wood, at the price of two and 50/100 dollars a cord, if plaintiff and John J. Ryan would leave said fifty cords of wood at some convenient point on the Tennessee river where said wood could be placed upon a barge, and it was further stipulated and agreed by and between plaintiff and John J. Ryan and defendant, that defendant was to furnish the barge at the place designated by plaintiff and John J. Ryan, on the Tennessee river in Morgan county, Alabama, and when so furnished, plaintiff and John J. Ryan were to place said fifty cords of wood on the barge to be furnished by defendant, for which defendant was to pay two and 50/100 dollars a cord for said wood. Plaintiff avers that after said contract and agreement was made and entered into by and between defendant and plaintiff and John J. Ryan said John J Ryan sold or surrendered to plaintiff all his right, title and interest in and to said contract, that plaintiff furnished the said fifty cords of wood at a convenient place upon the banks of the Tennessee river, and requested defendant to furnish to him a barge to load it upon; that plaintiff complied in every particular with the contract made with this defendant, refused to furnish the barge, and take the said fifty cords of wood as it had contracted to do, but on the contrary violated said contract and agreement whereby plaintiff was damaged one hundred and twenty-five dollars wherefore he brings this suit." (4) "Plaintiff claims of the defendant one hundred and twenty-five dollars for the breach of a contract, made between the plaintiff and John J. Ryan of the one part and defendant on, to wit, the 14th day of August, 1891, in and by said contract, the defendant agreed with plaintiff and John J. Ryan that it would take from them fifty cords of wood at the price of two and 50/100 dollars per cord, if they would place said wood at a convenient point on the bank of the Tennessee river, and it was further stipulated and agreed as a part of said contract that defendant was to furnish a barge at the point or place on the Tennessee river in Morgan county, Alabama, where plaintiff and said John J. Ryan placed said wood, and plaintiffs were to load said wood upon said barge, for all of which plaintiff and said John J. Ryan were to receive two and 50/100 dollars per cord for said wood. Plaintiff avers, that after said contract was made, John J. Ryan surrendered or sold to plaintiff all the right and interest he had in said contract so made with defendant, that plaintiff cut said fifty cords of wood and placed it at a convenient point or place upon the bank of the Tennessee river, in all respects as he had contracted to do; that he notified defendant that said wood was so cut, and where it had been placed upon 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 said barge to load said wood upon, and failed and refused to take or remove said wood, whereby of said refusal to take said wood and to furnish a barge to remove the same, said wood was destroyed and lost to plaintiff whereby he was damaged one hundred and twenty-five dollars wherefore he brings this suit." The material facts of the case are substantially the same as those disclosed on the former appeal and reported in 104 Ala. 267, 15 So. 807. The rulings of the court upon the evidence which are reviewed on this appeal are sufficiently shown in the opinion.

At the request of the plaintiff the court gave to the jury, among others, the following written charges:

(1) "If you find for the plaintiff, you must estimate the value of the wood at not less than $2.35 per cord; calculate interest from the commencement of the suit in this case to the present time, add the interest so calculated to the value of the wood, and give plaintiff judgment for the whole amount."

2. (3) "If you believe from all the evidence in this case, that plaintiff and J. J. Ryan made a contract with defendant, to furnish 50 cords of wood at $2.50 per cord, at a point on the Tennessee river in Morgan county, Ala., and that defendant promised to furnish a barge to load said wood upon when so furnished, and that before said wood was so furnished, and before the commencement of this suit, J. J. Ryan surrendered or sold his interest in said wood and contract, if one was made, to plaintiff; and you further find that plaintiff furnished said 50 cords of wood in all respects in compliance with said contract, if one was made; and you further find that defendant could have furnished a barge, owing to the condition of the river; but failed or refused to furnish said barge; and you further find that by reason of defendant's failure (if there was such failure), to furnish said barge and remove said wood within a reasonable time, that said wood was destroyed without the fault of plaintiff, then if you find this from all the evidence, your verdict must be for the plaintiff in this case."

3. (4) "Gentlemen of the jury, I charge you, that under the issues formed in this case, it is incumbent upon the plaintiff to establish to your satisfaction that a contract was made with the defendant, and that he has complied with said contract; but if from all the evidence you find that a contract was made, and that plaintiff has complied with said contract, then before defendant can escape liability on said contract by showing that it was conditioned, such as that its performance would depend upon circumstances, or upon the boatable condition of the Tennessee river, defendant must show by a preponderance of the evidence to your reasonable satisfaction that such conditions were a part of the contract, and if from all the evidence you believe a contract was made, that plaintiff complied with said contract, and notified defendant that the wood had been placed on the bank of the Tennessee river, and you further find that after such notification defendant had a reasonable time to remove the wood, and failed to do so, and that the wood was destroyed without plaintiff's fault, then your verdict must be for the plaintiff in this case."

6. (13) "Gentlemen, in trying questions of fact, the law does not count witnesses, and if from all the evidence in the case you are reasonably satisfied that the Tennessee river, from October 2, to November 5, 1891, was in such a boatable condition as would have permitted the landing...