Browne v. Giger

• Decision Date: 01 May 1930
• Docket Number: 1 Div. 594.
• Citation: 128 So. 174,221 Ala. 176
• Parties: BROWNE v. GIGER.
• Court: Alabama Supreme Court

128 So. 174

221 Ala. 176

BROWNE v. GIGER.

1 Div. 594.

Supreme Court of Alabama

May 1, 1930

Appeal from Circuit Court, Clark County; T. J. Bedsole, Judge.

Action by Eugene Giger against Harry R. Browne. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.

Reversed and remanded.

John E Adams, of Grove Hill, for appellant.

A. S Johnson, of Thomasville, for appellee.

BROWN J.

This case was tried by the court without the intervention of a jury and no exception was reserved to the conclusion and judgment of the court. For this reason the appellee, relying on Johnstone et al. v. O'Rear et al. (Ala. Sup.) 124 So. 743, insists that the judgment should be affirmed.

The writer of the opinion in the cited case overlooked section 9502 of the Code, which contains the provision omitted from section 9498, in bringing that section forward into the Code of 1923. The result is that the proposition stated in headnote 1 of the cited case is unsound, and Johnstone et al v. O'Rear et al., on this point is overruled.

The testimony taken on the trial was in part ore tenus, and is in conflict as to whether or not the lumber, the subject-matter of the controversy, was inspected by the defendant at the mill before the contract for its purchase was entered into, and as to whether or not the fact that there was an excess of 1x4's and short lengths entered into consideration in fixing the price.

While it is well settled that if the articles tendered for delivery did not conform to the stipulations of the contract, this armed the purchaser with the right to reject the shipment without liability. Elliott v. Howison, 146 Ala. 568, 40 So. 1018.

On the other hand, if the lumber was inspected and purchased, as it was on the mill yard, without regard to the predominance of the narrow widths and short lengths, and these matters entered into the fixation of the price, and this identical lumber was shipped, the purchaser was without legal right to reject the shipment. Mississippi Lumber Co. v. Smith & Co., 152 Ala. 537, 44 So. 475.

There was also evidence tending to show that the purchaser, after he had once declined to accept the shipment, agreed with the vendor that he would take the car lot and dispose of it, and thereafter failed or refused to do so.

In view of the conflict in the testimony, we are not able to affirm error in the conclusion and judgment of the court adjudging liability against the defendant.

There is another point, however, on which the case must be reversed.

The plaintiff seeks to recover the difference between the contract price and the amount received by him on a resale of the property, after deducting the necessary costs of freight, demurrage, and the expense of the sale.

The evidence shows that the lumber was sold to Wilson Brothers Lumber Company, Cincinnati, through plaintiff's agent, one Clark, and the only testimony offered in respect to this sale was plaintiff's statement as a witness for himself: "It had been on demurrage about three weeks when I turned it over to Gene Clark. I finally sold it to Wilson Brothers Lumber Company. I have not a statement from them or a tabulation of how they arrived at the amount I got out of it. I don't know how it was figured. I don't know how much the demurrage was. I don't know whether there was any expense in connection with unloading or reloading or selling. I reckon Wilson Brothers unloaded it. All I know is that they sent me $16.00. I don't know what expense they had. I don't know how they arrived at the total amount. They just sent me $16.00 and I accepted it."

The general rule is that where the contract of sale is f. o. b. initial point, the title passes on delivery to the carrier. Capehart et al. v. Furman Farm Improvement Co., 103 Ala. 671, 16 So. 628, 49 Am. St. Rep. 60.

However where draft is drawn on the purchaser for the price, and the draft with bill of lading attached is forwarded, though the bill of lading is taken in the name of the purchaser, the title does not pass until the draft is honored and the bill of lading delivered. ...