Armour Fertilizer Works v. Kinney

• Decision Date: 13 October 1927
• Docket Number: 6 Div. 695
• Citation: 114 So. 41,216 Ala. 547
• Parties: ARMOUR FERTILIZER WORKS v. KINNEY.
• Court: Alabama Supreme Court

114 So. 41

216 Ala. 547

ARMOUR FERTILIZER WORKS v. KINNEY.

6 Div. 695

Supreme Court of Alabama

October 13, 1927

Appeal from Circuit Court, Cullman County; James E. Horton, Judge.

Action by the Armour Fertilizer Works against E.C. Kinney. From a judgment for defendant, plaintiff appeals. Affirmed.

Sample & Kilpatrick, of Hartsells, for appellant.

F.E St. John, of Cullman, for appellee.

SOMERVILLE J.

All of defendant's special pleas were in legal effect but denials of plaintiff's cause of action, and the material matters alleged therein were admissible under the general issue. Hence there was no harm to plaintiff in the overruling of his demurrers to these pleas. So also as to plaintiff's special replication. It sets up nothing not available under the general issue, and its elimination by demurrer was not prejudicial.

The issue to be determined was a simple question of fact--whether plaintiff's version of the contract of sale, or defendant's, was the true one--and this issue seems to have been fully and fairly submitted to the jury. The fact that, after defendant was notified of a shipment at a later day and from a remoter point than specified in the contract he continued ready and willing to accept delivery up until 2 p.m. on August 16th, if it should arrive by that time, was not in effect a waiver by him of the requirements of the contract, nor did it per se operate as an estoppel upon his right to reject the shipment if unseasonably shipped and transported. Instructions predicated on those theories of waiver and estoppel were therefore properly refused.

Charge 2 was properly refused to plaintiff because it ignores defendant's version of the contract, viz. that the shipment on the day specified should be made from Atlanta which would very considerably expedite delivery at destination.

We see no reason for the refusal of charges 3 and 4, requested by plaintiff, which are predicated on his version of the contract as declared on in the complaint. However, these charges seem to have been fully covered by the general oral charge, and no prejudice could have resulted from their refusal.

Charges 1 to 5, given for defendant, are predicated on his testimony as to the terms of the contract, and were properly given.

Plaintiff's agent Sanford, who had handled this transaction with defendant, testified as to the debit items against defendant growing out of the sale, including express freight...