Columbia Motors Co. v. Williams

• Decision Date: 12 April 1923
• Docket Number: 7 Div. 354.
• Citation: 209 Ala. 640,96 So. 900
• Parties: COLUMBIA MOTORS CO. v. WILLIAMS.
• Court: Alabama Supreme Court

96 So. 900

209 Ala. 640

COLUMBIA MOTORS CO. v. WILLIAMS.

7 Div. 354.

Supreme Court of Alabama

April 12, 1923

Rehearing Denied June 14, 1923.

Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.

Action by A. J. Williams against the Columbia Motors Company. From a judgment for plaintiff defendant appeals. Corrected and affirmed.

Counts 1 and 4 are as follows:

"1. Plaintiff claims of the defendant the sum of $15,000 and for cause of action alleges the following facts, to wit:

"Plaintiff avers that he entered into a contract in writing with the defendant, the said Columbia Motors Company, on the 9th day of March, 1920, whereby plaintiff became the authorized and exclusive dealer in Columbia automobiles and parts in the Gadsden district of the state of Alabama, and whereby the plaintiff agreed to purchase from the defendant certain automobiles as embraced in a schedule set forth in the face of said written contract that said automobiles were to be ordered by the plaintiff from time to time as needed by forwarding shipping specifications to the defendant; that all cars bought by the plaintiff from the defendant were purchased for the purposes of resale in said Gadsden district; that plaintiff agreed to pay defendant for said cars its list price as the same may be from time to time established by it for each and every Columbia car purchased as aforesaid, less a discount of 25 per cent. f. o. b. Detroit, Mich., drafts against bills of lading payable immediately upon arrival of cars.

"Plaintiff avers that the defendant agreed to sell and deliver to the plaintiff the said automobiles according to said contract and as the same were ordered from time to time by the plaintiff; that all the cars sold and delivered by defendant to plaintiff under said

contract were to be new cars, and in first-class merchantable condition. Plaintiff avers that defendant breached its said contract in the following manner, to wit, that plaintiff ordered a carload of automobiles from defendant on or about the 29th day of March, 1920, pursuant to said contract; that the defendant shipped five automobiles in response to said order, and that said automobiles so shipped were inferior in material, parts, and workmanship; that they were unsalable and totally worthless to this plaintiff; that, as a proximate consequence of the defendant's said breach of its contract, plaintiff's business has been ruined; that he has paid out large sums of money in his efforts to put said cars in mechanical shape to sell; that he paid for the draft against the bill of lading covering said shipment of cars; that he has paid out large sums of money in providing and maintaining a place for the operation of said business and for the advertisement of same, and in the employment of salesmen and mechanics; that he deposited with the defendant the sum of $400 as a guaranty of his good faith in carrying out his said contract, which the defendant has failed and refused to return to plaintiff, though plaintiff has repeatedly demanded the same, all to the great damage of the plaintiff as aforesaid, wherefore he brings this suit; that he complied with the terms of the contract on his part-said contract is hereto attached and made a part hereof, marked 'Exhibit A.'

"4. Plaintiff claims of the defendant the sum of $15,000 damages and for cause of action alleges the following facts, to wit:

"Plaintiff avers that on or about the 9th day of March, 1920, he entered into a contract in writing with said defendant whereby plaintiff became the authorized and exclusive dealer in Columbia automobiles and parts in the Gadsden district, state of Alabama, and whereby the plaintiff agreed to purchase from the defendant automobiles at the prices stipulated or to be stipulated or fixed by the defendant from time to time during the period of time for which said contract was to remain in force, which was until December 31, 1920; that all cars bought by the plaintiff from the defendant were to be paid for on delivery, the same to be shipped with bill of lading attached to draft for the purchase price, and all said cars to be so purchased by the plaintiff from the defendant under said contract were purchased for the purpose of resale in the district named in said contract; said cars being manufactured by the defendant and sold to the plaintiff as its dealer in said territory. Such cars so purchased for said purpose were to be in good merchantable condition and salable for use and service as automobiles.

"And plaintiff avers that on or about the 29th day of March, 1920, plaintiff, under said contract, ordered from the defendant shipped to the plaintiff, five automobiles; that the bill of lading therefor attached to a draft upon plaintiff in the sum of $9,451.79, and upon arrival of the shipment the plaintiff paid said draft and received the bill of lading for said cars, and when he went to unload the same from the cars in which they were shipped he ascertained that defendant had breached its said contract in this, that said automobiles were inferior in material and workmanship. The paint on said cars was cracked and peeling off. The engines in said cars were defective, so that the cars would not run, and the cars were unsalable and worthless.

"And plaintiff avers that he paid out large sums of money in his efforts to put said cars in condition so that they could be sold, and that in order to carry on his business as a dealer in said cars, as provided in said contract, he paid out large sums of money in providing and maintaining a place for the handling of said cars and for advertising said cars for sale, all of which was lost to the plaintiff because said cars were unsalable and could not be made salable on account of the defects above set forth.

"And plaintiff avers that he in good faith performed all his obligations to the defendant under said contract, but the defendant so failed and refused to perform the contract on its part, all to the damage of the plaintiff as above stipulated."

Dortch, Allen & Dortch and P. E. Culli, all of Gadsden, for appellant.

C. W. Peters and W. T. Murphree, both of Gadsden, for appellee.

SAYRE J.

Count 1 of the original complaint and count 4 of the complaint as amended are assailed on the ground that they each allege two distinct and inconsistent causes of action: they seek damages for the breach of the contract alleged, thereby affirming its continued existence, and at the same time repudiate the contract by seeking to recover the purchase money paid thereunder. As we read the complaint, both counts proceed as for a breach of the covenants of a contract which the pleader undertakes to set forth according to its legal effect. The purpose of the contract, as it is alleged in both these counts, in substance, was to establish plaintiff as exclusive agent for defendant in the Gadsden territory and to effect an agreement for the sale by defendant to plaintiff of automobiles for resale by plaintiff at Gadsden and other places in that territory. The further averment of count 1 is that the automobiles to be delivered under the contract "were to be new cars and in first-class merchantable condition," and the breach alleged is that the cars shipped "were inferior in material, parts, and workmanship, unsalable, and totally worthless to this plaintiff." These allegations of count 1 sufficiently set forth the contract and a breach thereof. It may be conceded that on the case thus shown by this count the only recoverable item of damages alleged is that plaintiff "paid for the draft against the bill of lading covering said shipment of cars"; but this would not determine the count to be one for rescission. The allegation is of a breach, and in the circumstances stated plaintiff was entitled to recover the damage alleged. And if nonrecoverable items of damage were claimed, that fact could not be urged against the complaint by demurrer. In such case the defendant may protect himself against harmful results, by objections to the evidence, by exceptions to the oral charge authorizing recovery, and by special charges. Vandiver v. Waller, 143 Ala. 411, 39 So. 136; Southern Ry. v. Coleman, 153 Ala. 266, 44 So. 837. Like considerations obtain in the case stated in the forth count, added by amendment, where the stipulation is alleged to have been that the cars "were to be in good merchantable condition and salable for use and service as automobiles," and the breach that the cars were defective in respects, which are named, and "were unsalable and worthless." At least, the counts stated enough to warrant the recovery of nominal damages and that made them good as against demurrer. Cassells' Mill v. Strater Bros., 166 Ala. 282, 51 So. 969.

Quite a number of assignments of error raise the question whether under the complaint plaintiff was entitled to prove that he expended money in equipping a place for the storage and display of Columbia cars; in the payment of rent for such building; in employing salesmen in the effort to sell the cars he got from defendant under the contract; in paying for the services of mechanics who repaired the cars; and the value of his own services rendered to the same end; and the expenses of trips to Anniston and Ft. Payne to establish sub-agencies. The actual proximate injury sustained from the breach of warranty is the general rule of damages. For breach of warranty in the sale of goods such damages are prima facie, in other words, in the absence of special circumstances, the different between the value of the goods at the time of delivery and the value they would have had if they had answered to the warranty. 2 Williston on Contracts 1878; Snow v. Schomacker Mfg. Co., 69 Ala. 119, 44 Am. Rep. 509. This may be shown by proof of the...