Birmingham & A.R. Co. v. Maddox & Adams
| Citation | 155 Ala. 292,46 So. 780 |
| Parties | BIRMINGHAM & A. R. CO. v. MADDOX & ADAMS. |
| Decision Date | 14 May 1908 |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, St. Clair County; John W. Inzer, Judge.
Action by Maddox & Adams against the Birmingham & Atlantic Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
The evidence tended to show that plaintiff shipped from Cropwell Ala., to C. B. Sims, at Renfroe, Ala., 50,000 shingles 5X16 inches, deadhead, and that C. B. Sims was the agent of defendant at Renfroe, Ala. The letters forming the contract which is stated in the opinion were written by C. B. Sims agent B. & A. R. Co.; that is, the first letter was so written, while the other letters were signed by the Coosa Valley Company by its agent, Dunglinton, and the letters called for a shipment of "50,000 No. 2 sap shingles 5X16 inches, at $2 per M." The tendencies of the evidence were to show that 40,000 pieces were shipped; that is, 40,000 shingles, 5X16, 200 bundles of 200 pieces each. In this connection the plaintiff offered to show, and the court permitted them to show over the objection of defendant, that a shingle 5X16 counted as 1 1/4 shingles, and that the custom and usage among mill men were to ship 40,000 of such pieces on a 50,000 order, or, as put by another witness, a bundle of 200 shingles 5X16 was counted as 250 pieces, or as 250 shingles. The defendant tendered to the plaintiff before suit brought the sum of $81 as the amount of principal and interest due for the shingles, which tender was refused.
Knox Dixon & Burr, for appellant.
M. M. Smith and Victor Smith, for appellee.
The complaint is on the common counts, except the fourth count. The judgment recites that the fourth count was "stricken by the plaintiff." Where a contract is performed by one of the contracting parties, and nothing remains to be done by the other but the payment of the contract price in money, a recovery may be had on the common counts. This action is based upon a contract between the parties. The contract was in writing and by correspondence. When the whole correspondence, from the first letter of the defendant to the plaintiffs inquiring as to price, etc., is considered, which must be done, the contract is free from doubt or ambiguity. The contract in plain terms was that the plaintiffs should deliver f. o. b., cars at Cropwell for the defendant at Renfroe, 50,000 sap shingles, 5X16, at $2 per thousand.
It is a matter of common knowledge, when speaking of shingles, that "5X16" means 3 inches wide and 16 inches long, and of this the courts will take judicial notice, and parol evidence is unnecessary to explain. Abbreviations in common use, when employed in contracts, are matters of judicial cognizance as to their meaning. Sheffield Furnace Co. v. Hull Coal & Coke Co., 101 Ala. 446, 479, 480, 14 So. 672; 16 Cyc. 875; 7 Ency. of Evidence, 925.
The contract being plain and unambiguous, it was not competent to prove a custom, the tendency of which was...
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