Appeal
from Circuit Court, Mobile County; Samuel B. Browne, Judge.
Action
by E. H. Robertson against the Byrne Mill Company. From a
judgment in favor of plaintiff, defendant appeals. Reversed
and remanded.
Action
for breach of contract by appellee against appellant. The
complaint was in the following language:
"Plaintiff
claims of the defendant the sum of forty thousand dollars
damages for the breach of a contract which is in words and
figures as follows: 'This agreement, made and entered
by and between J. W. Byrne, and S.E. Byrne, doing business
under the name of the "Byrne Mill Company," party
of the first part, and Warren Hamilton, party of the second
part, witnesseth: The said Byrne Mill Company hereby agrees
to manufacture, sell, and deliver to Warren Hamilton, and
the said Warren Hamilton agrees to buy and receive from the
said Byrne Mill Company, at their mill near Stockton, Ala
the following lumber, to wit: All of the sap boards, other
than what is known as "mill culls," they may make
while operating their mill on other regular orders. The
said Warren Hamilton is to receive said sap boards as they
run, consisting of number 2 common and better, and also any
boards that will not grade heart face; widths of said sap
boards to run from three inches and up, and length of ten
twelve, fourteen, sixteen, eighteen, and twenty feet, but
no more than ten per cent. to run ten feet. The said Byrne
Mill Company agrees not to select or pick out anything from
the side board run of the mill except what will go 1X4 and
up heart face; but all the sap boards of all widths are to
be considered in this agreement, and are to be delivered as
they run at the end of the roller way at the end of the dry
kiln at said mill. The Byrne Mill Company agrees to furnish
and turn over to said Warren Hamilton the dry kiln and
sheds and all appurtenances thereto belonging that are now
in operation at their said mill, everything complete, and
to furnish the steam day and night in sufficient quantities
to dry the lumber to the requirements and satisfaction of
said Warren Hamilton, free of cost to him, except that said
Warren Hamilton agrees to furnish his skill and service in
making changes necessary for making more steam for said
kiln. The said Byrne Mill Company also agrees to furnish
any lumber necessary for the erection of more room for
storing the dry-kiln lumber, should more room be necessary
or for any other improvement said Warren Hamilton may
desire to make. The said Byrne Mill Company further agrees
to furnish the necessary power during the term of this
contract for the purpose of operating a planing-mill
business by the said Warren Hamilton; the said power to be
furnished free of rent or costs to the said Warren
Hamilton, he agreeing to make from time to time all
necessary minor repairs to said power at his expense, as it
is understood that the said Byrne Mill Company will have
nothing to do with the planing-mill and dry-kiln business
but said Warren Hamilton shall have full charge and control
of everything pertaining to said dry kiln and planing mill.
The price to be paid by the said Warren Hamilton for the
sap boards shall be $5.50 per thousand feet superficial (no
odd lengths counted), as fast as loaded on cars at Mobile,
60 days negotiable bankable paper; for all lumber, dressed
or rough, and for all dry-kiln lumber shipped by said
Warren Hamilton previous to the erection and operation of
his planing mill. This agreement to remain in full force
and effect for one year; but said Hamilton has the right to
renew the same for five years additional. It is distinctly
understood and agreed that the said Hamilton and the Byrne
Mill Company has the right to transfer or assign this
contract, and all rights and liabilities assumed herein to
any person or persons. It is further understood and agreed
that, if said dry kiln is destroyed or damaged by fire or
by the elements, then the same shall be repaired or rebuilt
by the said J. W. Byrne and S.E. Byrne, doing business as
the Byrne Mill Company. Said Hamilton, in the event of the
destruction of said kiln, agrees to give his skill and
attention as a mechanic as to rebuilding the same. It is
further agreed that, if the dry kiln is destroyed, the said
Hamilton has the option not to take the sap boards until
the dry kiln is rebuilt. This agreement is executed in
duplicate this the 21st of November, 1901. [ Here follows
the signatures and witnesses.] It is understood that the
power referred to, to be furnished by the said Byrne Mill
Company, is the water power as now existing at their said
mill.' Which said contract was assigned by Warren
Hamilton to plaintiff, and was renewed for an additional
term of five years as provided for in said contract. And
plaintiff avers that the defendants broke said contract, in
this: That they failed and refused to sell and deliver to
plaintiff any lumber or boards made by them at their
sawmill after November 21, 1902, and on, to wit, December
2, 1903, notified plaintiff that they would not further
perform said contract, although the defendants intended to,
and did, after the 21st day of November 1902, continue to
operate said mill on regular orders down to the bringing of
this suit, and expected and intended to operate the same
thereafter, and did, in so operating said mill, make prior
to the commencement of this suit a large quantity of lumber
of a character that the defendants had by their contract
agreed to sell to the plaintiff, to wit. two million of
feet of such lumber, and would thereafter during so much of
a period of five years from the 21st day of November 1902,
as was subsequent to the bringing of said suit, make, in
such operation of their said mill, an additional large
quantity of such lumber, to wit, sixteen million feet
thereof, to the plaintiff's damage as aforesaid.
"(2)
Plaintiff claims of the defendants the further sum of forty
thousand dollars damages for the breach of a contract which
is set out in the first count hereof, and is here referred to
and made a part of this count, and plaintiff avers that
defendants broke said contract in this: That they failed and
refused to sell and deliver to plaintiff any lumber or boards
made by them after November 21, 1902, and on, to wit, the 2d
day of December, 1903, notified plaintiff that they would not
further perform said contract, although the defendants
intended to, and did, after the 21st day of November, 1902,
continue to operate their said mill on regular orders down to
the bringing of this suit, and expected and intended to
operate the same thereafter, and did, in so operating said
mill, make, prior to the commencement of this suit, a large
quantity of lumber of a character that the defendants had by
their contract agreed to sell to plaintiff, to wit, two
million of feet of said lumber, and would thereafter, during
so much of the period of five years from said 21st day of
November, 1902, as was subsequent to the bringing of this
suit, make, in such operation of their sawmill, an additional
large quantity of lumber, to wit, sixteen million feet
thereof; and plaintiff avers that he has at all times been
ready, willing, and able to receive and pay for all of said
lumber in the manner provided in said contract, and to do all
other things that he was obliged by the terms of said
contract to do."
The
defendant moved the court to strike from each count of the
amended complaint filed herein so much of said counts as
claimed damages for and on account of the refusal of
defendants to sell and deliver to the plaintiff lumber
manufactured and to be manufactured subsequent to the
institution of this suit, upon the ground that the right of
plaintiff to purchase said lumber by virtue of the terms of
the contract set out in said complaint accrues and comes into
existence only after the lumber has been manufactured in the
manner contemplated by said contract, and also upon the
further separate ground that it is impossible to know at any
given time whether any, and, if so, how much, lumber covered
by said contract will be thereafter manufactured by the
defendant, and also upon the further ground that the contract
set out in said complaint imposes upon the...
