Central Lumber & Timber Co. v. McClure Lumber Co.

• Decision Date: 17 April 1913
• Citation: 180 Ala. 606,61 So. 821
• Parties: CENTRAL LUMBER & TIMBER CO. v. McCLURE LUMBER CO.
• Court: Alabama Supreme Court

61 So. 821

180 Ala. 606

CENTRAL LUMBER & TIMBER CO. v. McCLURE LUMBER CO.

Supreme Court of Alabama

April 17, 1913

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by the McClure Lumber Company against the Central Lumber &amp Timber Company in assumpsit on the common counts. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Plea 4 is as follows: "The defendant, as a further defense to the action of the plaintiff and to each count thereof pleaded separately and severally, saith that, at the time said action was commenced, the plaintiff was indebted to it in the sum of, to wit, $2,035.85 damages for the breach of a contract or agreement entered into by the plaintiff on, to wit, August 25, 1909, by which plaintiff promised in writing to cut and ship to defendant at Mobile, for export, 205,000 feet square edge and sound dry and bright long leaf yellow pine lumber from its mill plant at Wagar, Ala., by September 15, 1909, at and for the price of $13.50 per 1,000 feet f.o.b. cars at Mobile, Ala. Defendant avers that said contract or agreement was subsequently changed or modified by mutual consent of both defendant and plaintiff in one respect or particular only, viz., that is to say, said delivery, instead of being by September 15, 1909, was changed so that said lumber was to be delivered to defendant so that it could be placed by defendant on a vessel chartered by said defendant to receive said lumber, which said vessel was calculated to make November loading in the port of Mobile as the earliest possible date. And defendant avers that plaintiff knew or had full notice that said lumber agreed to be sold by it to defendant was bought by defendant for the purpose of being exported from the port of Mobile, and plaintiff further knew or had full notice that any delay to said vessel after her lay days had expired would occasion loss and damage to defendant in that defendant would be required to pay to said vessel demurrage charges for each day said vessel was so delayed after the expiration of her lay days. And defendant avers that plaintiff wholly failed and refused to deliver to defendant said lumber hereinabove mentioned in accordance with its said modified or changed contract or agreement, when it was so notified to do by defendant, whereby defendant was unable to procure elsewhere said lumber for a great length of time, and said vessel was delayed a great length of time after the termination of her lay days, and defendant, as a proximate result of said failure and refusal, was put to the cost, expense, and damage of demurrage charges which accrued to said vessel, besides the extra cost price of buying on the market lumber to replace said lumber which plaintiff failed and refused to deliver. And defendant claims all such demurrage charges and costs as special damages, and claims also the natural and proximate damages arising from plaintiff's said breach, both aggregating as aforesaid to wit, $2,035.85, which amount defendant hereby offers to set off...