Central of Georgia Ry. Co. v. Isbell

• Decision Date: 30 November 1916
• Docket Number: 7 Div. 781
• Citation: 198 Ala. 469,73 So. 648
• Parties: CENTRAL OF GEORGIA RY. CO. v. ISBELL.
• Court: Alabama Supreme Court

73 So. 648

198 Ala. 469

CENTRAL OF GEORGIA RY. CO. v. ISBELL.

7 Div. 781

Supreme Court of Alabama

November 30, 1916

Appeal from Circuit Court, Shelby County; Hugh D. Merrill, Judge.

Action by J.L. Isbell against the Central of Georgia Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

John London and Henry Fitts, both of Birmingham, for appellant.

Riddle & Ellis, of Columbiana, for appellee.

THOMAS J.

This cause was submitted and decided under Supreme Court rule 46 (65 South vii).

The amended complaint, on which the trial was had, alleged the breach of several conditions of a contract made by defendant with plaintiff for the purchase of cross-ties in a designated territory.

The allegations of performance on plaintiff's part and of breach on the part of the defendant were conjunctively averred in the complaint, and must be proved as alleged. H.A. & B.R.R. Co. v. Dusenberry, 94 Ala. 413, 10 So 274; L. & N.R.R. Co. v. Mothershed, 97 Ala. 261, 12 So. 714; L. & N.R.R. Co. v. Dancy, 97 Ala. 338, 11 So. 796; B.R. & E. Co. v. Baylor, 101 Ala. 488, 13 So. 793; Armstrong v. Montgomery Street Ry. Co., 123 Ala. 233, 246, 26 So. 349; Western Railway of Ala. v McPherson, 146 Ala. 427, 40 So. 934; Central Foundry Co. v. Bailey, 162 Ala. 623, 50 So. 346; Sloss-Sheffield S. & I. Co. v. Smith, 166 Ala. 437 52 So. 38. Southern Railway Co. v. Lee, 167 Ala. 268, 52 So. 648.

It there be lack of proof as to any material averment necessary to a recovery, the general charge should be given on proper request. So, where the matter is descriptive of that which is material, a variance between the allegations and the proof is fatal. Pharr & Beck v. Bachelor, 3 Ala. 237, 244; Forward v. Marsh, 18 Ala. 645; Dill v. Rather, 30 Ala. 60; Smith v. Causey, 28 Ala. 655, 65 Am.Dec. 372; Gilmer v. Wallace, 75 Ala. 220, 222; Wilkinson v. King, 81 Ala. 156, 8 So. 189; Stewart v. Tucker, 106 Ala. 319, 17 So. 385; Conrad v. Gray, 109 Ala. 130, 19 So. 398; Prestwood v. McGowan, 148 Ala. 475, 41 So. 779; Gould, Plead. 160 et seq.; 1 Chitty on Pl. 131; 22 Ency.Pl. & Pr. 522, 527.

The evidence tending to show the several conjunctive averments of the amended complaint authorized the submission of the litigated facts to the jury. Tobler v. Pioneer Co., 166 Ala. 517, 52 So. 86; Amerson v. Corona Coal Co., 69 So. 601.

Appellee insists that under the contract cross-ties might be delivered on the right of way of other railroads between Sylacauga and Birmingham (within the territory indicated), and that the plaintiff did deliver cross-ties thereunder on defendant's right of way and on the respective rights of way of the Southern and the Atlanta, Birmingham & Atlantic Railroads; that the same were inspected and accepted by the defendant as deliveries under the terms of said contract.

When this written contract is considered as a whole, it appears therefrom that it was in the contemplation of the parties thereto that cross-ties should be produced within the radius of the designated points, to be delivered by plaintiff to the defendant on its right of way when practicable, or that the same might be delivered on the right of way of other immediately connecting lines of railway in the same territory. Moreover, this was the construction placed on this provision of the contract by the parties thereto in the deliveries of cross-ties thereunder, and in the inspection and acceptance thereof by the defendant. Mobile County v. Linch, 73 So. 423.

The defendant's certificates of inspection showed delivery and acceptance of cross-ties under this contract on the right of way of the Southern Railway Company, and the Atlanta, Birmingham & Atlantic Railroad Company in the territory embraced by the contract, and the payment therefor by the defendant of the sum of 1 1/2 cents for the loading on such connecting lines of the 1,272 cross-ties covered by the certificates and so delivered and accepted. The averment of the complaint as to the delivery of the cross-ties "on the railroad" was thus discharged by the proof of such delivery, inspection, and acceptance on the right of way of said connecting lines of railway.

There was evidence tending to show failure of payment for some cross-ties delivered and accepted as per contract terms. The number and amount of the respective deliveries, and the acceptance thereof and payment therefor, or liability therefor, were questions for the jury.

If there was a failure of the evidence to show that the number of cross-ties averred to have been delivered was so delivered at the alleged respective times, no variance was presented, provided the evidence showed that some cross-ties were delivered by plaintiff to defendant under the contract terms at the times averred. The law does not require the plaintiff to prove literally the allegations of his complaint as affecting the quantum of recovery. The plaintiff was only required to prove the substantial averments of the complaint going to the right of recovery for the several alleged deliveries for which suit was brought.

If the defendant violated its contract by the attempted rescission without just cause, and declination further to inspect or receive cross-ties...