Austin v. Beall

• Decision Date: 19 May 1910
• Citation: 52 So. 657,167 Ala. 426
• Parties: AUSTIN ET AL. v. BEALL.
• Court: Alabama Supreme Court

52 So. 657

167 Ala. 426

AUSTIN ET AL. v. BEALL.

Supreme Court of Alabama

May 19, 1910

Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.

Action by W. W. Beall against J. W. Austin and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

The first three counts are the common counts. The fifth count claimed damages for the breach of warranty in the sale of a car of lumber by defendants to plaintiff on February 1, 1904 which the defendants warranted to be free from sap and through shake, when in fact a large quantity of lumber, to wit, 13,500 feet, contained sap or through shake. The fourth count was as follows: "Plaintiff claims $187.70 damages from the defendants, for that, whereas, heretofore, to wit on the 1st day of February, 1904, the defendants agreed and contracted with the plaintiff to saw for and ship on plaintiff's order one car of long leaf yellow pine lumber, free from sap and through shake, at the price of $8 per M. feet f. o. b. cars, count and inspection guaranteed. Plaintiff avers that the expression 'count and inspection guaranteed,' when used in this connection, was understood by defendants to mean, and did mean, the defendants' guaranty of quantity of the lumber and the grade of the same at point of destination; that is, at point to which shipped. And plaintiff avers that he paid the defendants $115.87 for said lumber, relying upon their guaranty as herein alleged that said lumber was shipped by plaintiff, and at point to which shipped did not come up to guaranty as herein alleged in that it was not free from sap and through shake, and that thereupon, with the consent and at the direction of the defendants, he disposed of said lumber to best advantage, and the proceeds of such distribution failed to pay the freight on the shipment by $55, which amount as shipper plaintiff was bound to pay and did pay; that said $115.87, paid defendants as averred, was the price of said lumber according to agreement herein set out, and that defendants failed and refused to pay said $170.87."

W. O. Mulkey, for appellants.

C. D. Carmichael, for appellee.

McCLELLAN J.

The plaintiff (appellee) must trace his right to recover in this action through a breach, by defendants (appellants), of an implied warranty, in respect to quantity and quality, of a car of lumber bought and sold, respectively, by the parties. To such a purpose the common counts cannot be properly applied. 4 Cyc. pp. 326-328, and authorities collated in notes thereon.

Accordingly, the several affirmative charges, as to the common counts, requested by and refused to defendants, should have been given. Their refusal was error.

The measure of plaintiff's damages, if otherwise entitled to recover, is that stated in Penn & Co. v. Smith et al., 104 Ala. 445, 449, 18 So. 38. The standard of recoverable damage set down in that decision necessarily excludes freight charges as elements of the recovery.

The contract between the parties contemplated the delivery of the lumber "f. o. b. cars" in this state, and not at the point of destination, remote from the place of shipment. Hence the freight charges on the car was a matter dehors the engagement between these parties and could not have been within their contemplation as an element of damages for a breach thereof. It follows that evidence of what the freight...