Cassels' Mills v. Strater Bros. Grain Co.

• Decision Date: 16 December 1909
• Citation: 166 Ala. 274,51 So. 969
• Parties: CASSELS' MILLS ET AL. v. STRATER BROS. GRAIN CO.
• Court: Alabama Supreme Court

51 So. 969

166 Ala. 274

CASSELS' MILLS ET AL. v. STRATER BROS. GRAIN CO.

Supreme Court of Alabama

December 16, 1909

Rehearing Denied Feb. 26, 1910.

Appeal from City Court of Gadsden; John H. Disque, Judge.

Action by Strater Brothers Grain Company against Cassels' Mills and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

The pleadings are sufficiently set out in the opinion of the court. The following are the grounds for motion for new trial referred to: (4) "A number of letters written by plaintiff to the defendant's Cassels' Mills." (5) "That the court erred in allowing witness Bingham to testify as to the meaning of 'Louisville terms.' " (6) "In allowing witness Bingham to testify as to the wheat sold in the month of July, 1906, and the price paid for same." (7) "The court erred in allowing the witness Bingham to state that statements were mailed Cassels' Mills of said July sale."

Charge A was the general affirmative charge. Charge B: "The court charges the jury that they will find the issues in favor of the defendants on their pleas of recoupment and set-off, if they are reasonably satisfied from the evidence that plaintiff failed to ship defendants No. 2 red winter wheat, as it agreed to do in said contract, and by reason of its said failure to so ship said wheat defendants were injured; and the fact, if it be a fact, that plaintiff through its agent or officer, in May, 1906, agreed to ship defendants No. 2 red winter wheat, which it failed to do, and defendants, relying on said representation of said agent or officer, gave an order for several cars of wheat, would not constitute a waiver on the part of the defendants as to their said damages."

The following charges were given for the plaintiff: (4) "The court charges the jury that if, after the defendants were notified that Louisville terms meant Louisville weights and grades final, ordered more wheat shipped under the contract then that was a ratification of the contract as meaning that Louisville weights and grades final, and in that event your verdict should be for the plaintiff." (5) "The court charges the jury that if they believe from the evidence that, after defendants were notified that Louisville terms meant Louisville weights and grades final, they ratified the contract by ordering out more wheat, then that was an adoption of that meaning, and defendants would be bound by that meaning."

Culli &amp Martin, for appellants.

Dortch Martin & Allen, for appellee.

MAYFIELD J.

This is an action by appellee, a Louisville (Ky.) grain dealer, against appellants, Gadsden (Ala.) mills et al., and is by the vendor against the vendees, to recover damages for breach of a contract for the sale of 13,200 bushels of "No. 2 red winter wheat." The contract was as follows: "Louisville, Ky., December 18, 1905. Cassels' Mills, Gadsden, Alabama. Gentlemen: We confirm sale to you to-day by wire through Mr. Samuel F. Milan, of thirteen thousand two hundred (13,200) bushels of No. 2 red winter wheat, in bulk, at $1.04 1/2 per bushel, including freight to Gadsden, subject to Louisville terms; shipment to be made at the rate of 600 bushels per week, beginning first week in January, with the understanding that after January the price will be 1¢ per bushel per month additional, or in other words any wheat shipped in January on this contract will be $1.04 1/2, February shipment $1.05 1/2, March $1.06 1/2, April $1.07 1/2, and May $1.08 1/2, you to guarantee the present rate of 19¢ per hundred pounds net from Louisville to Gadsden, or in other words, if the rate should advance from the present basis, you will pay the advance, and if it should decline from the present basis you to receive the benefit of the decline if any. Yours truly, Strater Brothers Grain Co., Incorporated, by Leonard A. Hewitt, Secy. We hereby accept and confirm the above contract. Cassels' Mills." The complaint originally consisted of three counts. Demurrers were sustained to two of these, 1 and 3, leaving count 2, as to which demurrer was overruled. The complaint was then amended by adding counts 4, 5, 6, and 7. Demurrers were overruled to each of the amended counts. To these counts defendants pleaded the general issue, and a number of special pleas, numbered from 1 to 7, inclusive. The trial court sustained demurrers to pleas 3 and 5, and overruled the demurrers to the other pleas. The case was tried upon the issues as above indicated, and resulted in a judgment for plaintiff for $1,448, from which judgment the defendants prosecute this appeal.

The judgment was rendered on the 19th day of November, 1907, and on the 20th day of December, 1907, an order was made allowing 30 days in which to have bill of exceptions signed. On the 28th day of November, 1907, defendants filed a motion for a new trial, and on the same day this motion was set for a hearing on the 30th day of November. It appears that the motion was, on the 20th day of December, finally disposed of by being denied and overruled. At this time the defendants were allowed 30 days in which to have bill of exceptions signed, and the bill was signed on the 7th day of January, 1908. The appellee here moves to strike the bill of exceptions because not signed within the time required by law, and also to strike the assignments of error predicated upon the matter shown only by the bill of exceptions. The act creating the city court of Gadsden (in which this action was tried) contains the provisions usually found in the acts creating the city courts of this state, to the effect that bills of exceptions shall be presented to, and signed by, the judge, within 30 days after the trial, unless the time be extended by the court or by agreement of counsel. Acts 1900-01, p. 1299.

The bill in this case was not signed within 30 days after the trial, and the time within which it could be signed was not extended until after the 30 days had expired. The motion for a new trial was made within time, and the bill of exceptions, in so far as it pertains to the motion for a new trial, was signed within the time; and it may be looked to for the purpose only of revising the rulings on the motion for a new trial. It cannot be looked to, as a part of the record, for revising actions or rulings of the court on the original trial proper, unless the same questions were again presented and renewed on the motion for a new trial. Cobb v. Owen, 150 Ala. 410, 43 So. 826; McCarver v. Herzberg, 135 Ala. 544, 33 So. 486; Bank v. Wilks, 132 Ala. 573, 31 So. 451; Ala. Midland v. Brown, 129 Ala. 282, 29 So. 548.

Of course, no bill of exceptions is necessary to the revision of the rulings of the trial court upon the demurrers to the pleadings. These are and must be shown by the record proper, and not by the bill of exceptions. The counts of the complaint as to which demurrers were overruled practically and substantially followed the Code forms provided for such actions, and hence are by law sufficient. It was not necessary for the plaintiff to sue the defendants as partners or as a corporation; they can be sued as individuals, or as partners, if they are partners. The complaint does not attempt to declare against them either as partners or as corporators. There is nothing in the complaint or in the evidence to show that this was necessary. The defendants are in a better position to know whether they are individuals, partnerships, or corporations, than the plaintiff. The character in which they do business would come better from them in the form of a plea, than in that of a demurrer.

There is clearly nothing in any of the grounds of the demurrer; those that are not too general go to defensive matter purely. There was no necessity for the complaint to do more than state a good cause of action; and this each count complained of did, practically in Code form. Elements of damages, amounts thereof, etc., cannot be raised by demurrer to a complaint, if the complaint states a cause of action even for nominal damages. Objections or exceptions as to such matters must be by motion to strike, by objections to the evidence, or by instructions to the jury; and not by demurrer. Norton v. Kumpe, 121 Ala. 446, 25 So. 841; Pryor v. Beck, 21 Ala. 393.

That the plaintiff could have sold the wheat bought by defendant, in the market, to other parties, without a loss, was purely defensive matter. Matters of defense need not be alleged in a complaint. Booth's Case, Minor, 201.

The grounds that the counts did not show the manner in which the plaintiff was damaged, and did not show that the wheat was tendered by plaintiff and declined by defendants, are sufficiently answered by the averments that the defendants refused to take and to pay for the wheat and notified plaintiff not to ship any more.

There is likewise nothing in the ground of demurrer that the phrase used in the contract, "subject to Louisville terms," is "ambiguous and uncertain." The contract would be good without this term; if void for uncertainty (which it is not), it could be eliminated and yet leave a good contract; if uncertain, it is capable of being made certain by extrinsic proof. The parties used it in their contract, and, if the contract is sued on, it is certainly proper to set out the contract as it was made. It is a question of proof to show what the parties meant or intended to express by it, if its meaning is uncertain, and not a ground of demurrer unless it rendered the contract void and of no effect. The contract was not void on its face, by reason of this phrase, but it was open to both parties by competent evidence to show the...