Cain Lumber Co. v. Standard Dry-Kiln Co.

• Decision Date: 07 January 1896
• Citation: 18 So. 882,108 Ala. 346
• Parties: CAIN LUMBER CO. ET AL. v. STANDARD DRY-KILN CO.
• Court: Alabama Supreme Court

18 So. 882

108 Ala. 346

CAIN LUMBER CO. ET AL. v. STANDARD DRY-KILN CO.

Supreme Court of Alabama

January 7, 1896

Appeal from city court of Montgomery; Thomas M. Arrington, Judge.

Action by the Standard Dry-Kiln Company against the Cain Lumber Company and others for breach of contract of purchase of machinery. From a judgment for plaintiff, defendants appeal. Reversed.

This was an action in damages brought by the appellee, the Standard Dry-Kiln Company, against the appellant the Cain Lumber Company, a partnership composed of McDuff Cain, John W. Moore, and Arthur Kirkland, and against the members of the partnership individually, and sought to recover damages for the breach of a contract entered into for the purchase of machinery to be used in the manufacture of lumber. The defendants filed the following pleas: (1) That there was no such partnership as that described in the complaint; (2) general issue; (3) that the firm of Cain Lumber Company had no existence at the date of the contract alleged in the complaint. The appellant Cain filed a special plea of non est factum. The material facts, as disclosed by the bill of exceptions, were substantially as follows: Moore, Kirkland &amp Co., a partnership composed of defendants Moore, Cain, and Kirkland, were during the year 1891 engaged in the business of buying and selling lumber. Late in the summer of that year they decided to go into the business of manufacturing lumber as well. Requiring a dry kiln in this business, they had negotiations with one Beale, as agent of this appellee, and also with the agent of the American Drier Company. About this time, and subsequently, the defendant Moore, in the presence of the defendant Cain and his partner Kirkland, told Beale that they intended calling the new business in which they proposed to engage-manufacturing lumber-the Cain Lumber Company, in compliment to Mr. Cain, and that that company was to be composed of Moore, Cain, and Kirkland, who were the same persons composing the firm of Moore, Kirkland & Co. At the time of their first negotiations with Beale, as the agent of appellee, and with the agent of the American Drier Company, they finally concluded to accept the bid of the American Drier Company; and during that negotiation the defendant Cain stated to Beale, the agent of appellee, that he was going to leave the whole matter of a drier to his partner Moore. Soon after this negotiation the defendant Moore, not being satisfied with his contract with the American Drier Company, telegraphed Beale to keep him posted as to his whereabouts. After some corresponding, Beale, at Moore's request, met him in the city of Montgomery, Ala and then Moore told him that they were dissatisfied with their contract with the American Drier Company, and desired to make a contract with him, as the agent of appellee, for the purchase of appellee's dry kiln. Moore also told him then that he wishes to be very careful, as the whole responsibility of the purchase of a drier rested on him. Thereupon the contract, the basis of this suit, was executed Beale acting as the agent of appellee, and Moore executing it in the name of the Cain Lumber Company. This contract was as follows: "An agreement made and entered into by and between the Standard Dry-Kiln Co., of Louisville, Ky., of the first part, and Cain Lumber Co., of the second part witnesseth, that the Standard Dry-Kiln Co. agree to furnish machinery and apparatus scheduled as per order of even date, in value of $3,435.00, and upon terms and conditions as stated in said order signed by Cain Lumber Co. The conditions of this agreement are that the legal title and right of property in and to the property referred to is to remain and be vested in the Standard Dry-Kiln Co. until said notes, and all interest thereon accrued, are paid, and, when any note falls due and is not paid, it is agreed that all other notes immediately become due and owing, and that the Standard Dry-Kiln Co., its officers, agents, or attorneys, may at once enter upon the premises and remove the machinery, and that all payments made on notes or otherwise, previous to the default in payment of said note, shall be, and are hereby considered to be, in payment for the use and occupation of said machinery; that the said Cain Lumber Co. forfeit all rights to all previous payments, should they fail to pay any of said notes at maturity, but, in case said note were paid, then the title to said property to vest in said Cain Lumber Co.; that Cain Lumber Co. agree to insure said machinery, for the benefit of the Standard Dry-Kiln Company, for $3,435.00, or as their interest may appear; that no warranty or verbal understanding exists in regard to the present contract; that the order referred to is considered and made a part of this contract." When this contract was being drawn up, Beale asked Moore whether it should be drawn in the name of Moore, Kirkland & Co., or in the name of the Cain Lumber Company, and Moore answered that it was to be drawn in the name of the Cain Lumber Company. Defendant Cain was absent from the city of Montgomery, where the contract was executed, at the time of its execution, but returned in about a week thereafter. He testifies that, as soon as he ascertained the fact that the contract had been made with appellee, he telegraphed it to cancel their "conditional order," to which reply was sent denying that the order was conditional. Beale testifies-and he is not contradicted-that on the day, or the day after, on which Cain sent that message, he had a conversation with Cain in reference to the order, and Cain told him of having sent the telegram, and said, further, that he was building his rooms for a drier, with the view of putting in the apparatus ordered of appellee; saying that he was satisfied that the American Drier Company could not comply with their contract, and that, after giving them a 30-days trial, he would take their apparatus out, substitute appellee's, and thus he would be able to get his lumber dried in 30 days for nothing. Nothing further was said showing any countermanding of the order given appellee and here sued on. After some correspondence between appellee and appellants, the appellants refused to receive the machinery ordered, and this suit was brought to recover the damage suffered by appellee by reason thereof. This correspondence was conducted on the part of appellee by its secretary, whose testimony was taken, and by appellants by letters which seem to have been signed indifferently by Moore, Kirkland & Co. and the Cain Lumber Company.

Preparatory to the trial of this cause the defendants propounded certain interrogatories to plaintiff, under the statute providing for the examination of parties; and, the plaintiff being a nonresident, a commission was issued to take its testimony, and the commission and the interrogatories were duly forwarded to the commissioner, in Louisville, Ky. Upon being notified thereof, the agent of plaintiff familiar with the facts promptly appeared before the commissioner, and fully and fairly answered each and every interrogatory. The commissioner failed to forward the testimony to the clerk at Montgomery of the court in which this suit was pending, giving notice that he would not do so until his fee as commissioner was paid. The attorneys of both plaintiff and defendants were notified thereof in ample time, and, neither side having paid the fee of the commissioner, he never parted possession with the testimony, and the same was not at the trial. Thereupon the defendants moved the court to direct a nonsuit, on the ground that the plaintiff had not filed the answers to the interrogatories propounded to it in court.

In the litigation the main issue was whether or not the defendant Cain was bound by the contract sued on; he claiming that he was not at the time of its execution a member of the firm of the Cain Lumber Company, and that Moore had no authority to bind him by the contract. The other facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion, it not being deemed necessary to set out the rulings of the court upon the evidence in detail.

The defendant Cain requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "There is no evidence in this case that Cain authorized Moore to purchase from the plaintiff the drier involved in this suit." (2) "If the jury believe from the evidence that there was only one firm of Cain Lumber Company, and that was formed by the articles in evidence, then they must find for the defendant Cain." (3) "There is no evidence in this case connecting Cain with the contract offered in evidence." (4) "If the jury believe the evidence, they will find for defendant Cain." (5) "The jury cannot consider the contract offered in evidence, as against defendant Cain." There were verdict and judgment for the plaintiff. The defendants appeal, and assign as error the several rulings of the trial court to which exceptions were reserved.

Lester C. Smith and Lomax & Ligon, for appellants.

Marks & Massie, for appellee.

BRICKELL C.J.

The sections of the Code (sections 2816-2832) entitled "Examination of Parties by Interrogatories" had their origin in a pre-existing statute which in terms provided for a discovery at law. Clay, Dig. p. 341, § 160. In Allen v. Lumber Co., 90 Ala. 490, 8 So. 129, it was in effect, decided...