American Tie & Timber Co. v. Naylor Lumber Co.

• Decision Date: 17 December 1914
• Docket Number: 825
• Citation: 67 So. 246,190 Ala. 319
• Parties: AMERICAN TIE & TIMBER CO. v. NAYLOR LUMBER CO.
• Court: Alabama Supreme Court

67 So. 246

190 Ala. 319

AMERICAN TIE & TIMBER CO. v. NAYLOR LUMBER CO.

No. 825

Supreme Court of Alabama

December 17, 1914

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by the Naylor Lumber Company against the American Tie &amp Timber Company, for breach of contract. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Inge &amp Armbrecht, of Mobile, for appellant.

Clarke Brown & Howard, of Mobile, for appellee.

DE GRAFFENRIED, J.

This action was brought by the appellee against the appellant to recover damages for the alleged breach of a contact for the purchase of cross-ties as well as to recover compensation for services in the matter of forwarding certain cross-ties to the Isthmian Canal Commission at the port of Colon, and for compensation for the storage of appellant's cross-ties in a certain boom belonging to the appellee at Moss Point, Miss.

In the sixth count of the complaint appellee alleges that on the 19th day of February, 1913, it entered into a contract with the appellant, which contract was in writing, as follows:

"New Orleans, La., Feb. 19, 1913.

"The Naylor Lumber Company, New Orleans, La.--Gentlemen: For and in consideration of the sum of $1.00 each and to us in hand paid, we agree to take and they to deliver as many heart cross-ties as it is possible for them to accumulate at Moss Point, for twelve months from the above time, at the following price:

"7x9--8'6"' ties at 52 cents.

"7x8--8'6"' ties at 47 cents.

"6x8--8' ties at 44 cents.

"Upon completion of delivery of two hundred thousand (200,000) or more ties by the Naylor Lumber Company in twelve months' time or less, we agree to pay them one cent (1¢) additional on the said 200,000 ties on any further quantity they deliver. This agreement to stand good for twelve months.

"It is further agreed by the parties hereto that the said American Tie & Lumber Co. shall have supervision over the inspection of all the ties delivered to them by the Naylor Lumber Company. That they shall also pay all drafts drawn by inspector of the Naylor Lumber Co. for actual cost of ties delivered in boom or on wharf in Moss Point, when inspector's certificate is attached to draft drawn by said inspector. Yours truly,

"American Tie & Lumber Co.,

"C.Y. Naylor, Agent.

"Naylor Lbr. Co.,

"By W.E. Clark, Secy. & Treas."

After setting out the contract, the count further alleges, in substance, that the appellee complied with all of the provisions of the contract up to the 19th day of March, 1913, and that at that time it stood ready and willing and offered to carry out the provisions of the contract on its part to be performed, but that on the 19th day of March, 1913, the appellant notified the appellee that it would no longer carry out the provisions of said contract, and that since that time the appellant had wholly failed and refused to comply with the provisions of the contract. Several grounds of demurrer were interposed to this count, but none of them raised the question of indefiniteness or want of mutuality in the contract. It is urged on appeal that this count does not state a substantial cause of action, and for that reason will not support a verdict.

The contract, in short, is that the appellee would sell and deliver and the appellant would buy for a fixed price "as many heart cross-ties as it is possible for them [appellee] to accumulate at Moss Point for twelve months" from the date of the contract, which cross-ties were to be of certain dimensions. This agreement is readily distinguishable from those where the quantity to be bought and sold is "ascertainable with reasonable certainty." It has been correctly held that a contract to purchase the entire output of a certain mill or manufacturing plant, for a given time, at a given price, is valid; and likewise a contract to purchase all of the coal of a certain quality that might be needed for a certain plant, at a certain price and for a fixed period, is valid. In such cases the quantity, though it may depend to some extent on the will or effort of one of the contracting parties, can be ascertained with reasonable certainty; but in the present case the quantity depends upon so many uncertain elements and contingencies that we cannot say that it can be brought within the foregoing principle. The quantity to be bought and sold under the present contract (as many heart cross-ties as it is possible for the appellee to accumulate at Moss Point within 12 months) depends on the financial ability, the business capacity, the industry, the efficiency, and credit of the appellee, the supply of labor, all under constantly changing conditions, as well as on the supply and demand for heart cross-ties with the world as a market, and also on the uncertainty of transportation facilities and the responsibility of dealers in heart cross-ties and their respective abilities to perform such contracts as they might make with the appellee for cross-ties which might be bought from such dealers by the appellee for delivery under this contract.

An examination of the face of the contract, without more, shows that no breach could be assigned upon it which could be compensated for in damages capable of being computed with reasonable certainty; but it contains a promise for a promise, and is executory, extending over a period of 12 months; and though uncertain in its incipiency, by partial performance on the part of the Naylor Lumber Company, it might be made certain and enforceable to that extent. The time for making payments under the contract is not clearly stated therein, but the evidence shows that the parties themselves have construed the contract to mean that payments should be made on delivery, at...