Cook & Laurie Contracting Co. v. Bell
| Decision Date | 09 May 1912 |
| Court | Alabama Supreme Court |
| Parties | COOK & LAURIE CONTRACTING CO. v. BELL. |
Appeal from City Court of Montgomery; William H. Thomas, Judge.
Action by William A. Bell against the Cook & Laurie Contracting Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Plaintiff sued defendant for the purchase price for 2,000 barrels of cement. The complaint is in general assumpsit, and contains two counts declaring on simple account and account stated and one count for the price of merchandise sold to defendant on December 19, 1908.
Defendant pleaded the general issue, and also four special pleas. Plea 2 avers that the claim sued on arose out of an executory contract of sale, by the terms of which the title to the cement, the subject of the suit, did not pass, and was not to pass, to the defendant until delivered and paid for. The substance of pleas 3, 4, and 5 is that plaintiff's assignor had on hand about 10,000 barrels of cement in bulk and agreed to reserve for defendant for future delivery 2,000 barrels thereof from this mass; that this specified quantity was not then separated from the greater mass, and that the title thereto did not pass to defendant, and there was no agreement or expectation that it should pass until the delivery to defendant at a specified later time; that this delivery was to be made to defendant at the warehouse where the cement then was, as defendant needed it for construction work, and that defendant was to receive and pay for it when the cement plant was transferred by its then owners to a new company to be soon organized; that this event occurred on May 24, 1909, at which time the cement reserved for defendant under said contract was in a greatly damaged condition, owing to exposure to rain from a damaged roof; that this damage to the roof above the cement occurred on January 29, 1909, and that about half of the cement was ruined by rains during February following, the roof not having been repaired; and that on May 24, 1909, plaintiff's assignor did not have on hand 2,000 barrels of merchantable cement. Plea 3 avers also, that plaintiff's assignor did not at that time tender to defendant that amount of such cement.
Plea 5 avers, also, that plaintiff's assignor was negligent in permitting the rain to injure the cement, in that he did not repair the roof, nor notify defendant of its condition; that defendant offered to take and pay for such portion of the cement as was good, which offer was refused; and that defendant never received any cement or other thing of value and does not owe plaintiff or his assignor any sum by account or otherwise.
The following are written charges given the plaintiff:
(1) "The court charges the jury that if they believe from the evidence that it was agreed between George Laurie and P. H. Moore that the 2,000 barrels of cement should be delivered to the defendant in the stockhouse of the plant at Spocari, and if they further believe from the evidence that Moore then separated 2,000 barrels of merchantable cement, suitable for construction work, from the mass of cement on hand, according to the terms of the contract, and sacked and stored same in bins in said stockhouse, and fastened the doors of said bins, and marked the same so as to designate the cement therein as cement for the defendant, such separation and storing in said bin is a sufficient delivery."
(2) "The court charges the jury that, if they believe from the evidence that prior to the 23d day of January, 1909, the sale of 2,000 barrels of cement by plaintiff's assignor, through P. H. Moore, to the defendant, was consummated, and that the time and price of payment were agreed upon, and nothing remained to be done by the seller, except to deliver the cement, and if they further believe from the evidence that it was agreed between the defendant, through George Laurie, and the said Moore that the said cement should be delivered to defendant at the stockhouse of the plant at Spocari, and that said Moore than separated 2,000 barrels of merchantable cement, suitable for construction work, from the mass of cement on hand, according to the terms of the contract, and stacked and stored same, and stored it in the building of said stockhouse, and marked said bin so as to designate the cement therein as the cement of the defendant, such separation and storing was a sufficient delivery of the cement, and upon such delivery the title to the cement passed to the defendant, they should find for the plaintiff, less such an amount as the evidence shows was credited to the defendant's account by the said Moore, with interest."
(3) "The court charges the jury that if they believe from the evidence that the cement became the property of the defendant at the time it was stored in the bins in the stockhouse at Spocari, and if they further believe from the evidence that the said cement was merchantable and suitable for construction work at the time it was so stored, then you should find for the plaintiff for the amount sued for, if you further believe that the amount sued for does not exceed the agreed price, less the credit to which the defendant is entitled for payments on account."
(4) "The court charges the jury that, if they believe from the evidence that the sale of the cement was complete, and the title to said cement passed to defendant at the time said cement was stored in the bins at the stockhouse at Spocari, then the risk of loss or damage to the cement was on the defendant from and after that time."
(5) "The court charges the jury that, if they believe from the evidence that the sale of cement was completed prior to the receipt by defendant of the statement of account accompanying the letter of P. H. Moore, general manager, dated January 23, 1909, and that after receipt of said statement the defendant promised to pay the amount stated in said statement or account, they should find for the plaintiff under the second count of the complaint."
(6) "The court charges the jury that, unless there is an agreement to the contrary between the parties to a sale of personal property or goods, the title passes ordinarily when the terms of price and payment are agreed on, and the goods are delivered to the purchaser, and after title passes to the buyer the risk of loss is on the buyer."
There was judgment for plaintiff, W. A. Bell, in the sum of $2,449.53, as against the fendant, the Cook & Laurie Contracting Com-Company.
R. L. Harmon, of Montgomery, for appellant.
Jones, Foster & Field, of Montgomery, for appellee.
On December 19, 1908, after some preliminary correspondence on the subject, a contract was made between E. P. Benjamin, as trustee, and the defendant company, for the sale by the former to the latter of 2,000 barrels of Portland cement. Plaintiff's witness, P. H. Moore, who represented the vendor in the transaction, testified: That the vendor had on hand at the date of the sale about 5,000 barrels of cement lying in bulk in his bins. That it was agreed that the 2,000 barrels sold to defendant out of this stock on hand should be sacked and stacked in the vendor's bins at his plant; and that the agreed price, $1.10 per barrel, should be paid on or before the transfer of the cement plant by Benjamin to a new company in process of formation, which event, it was mutually contemplated, would probably occur about January 11, 1909. That there was no specific agreement as to the time of delivery by the vendor or acceptance by the vendee, nor as to the place of delivery, except defendant's instruction to leave the cement in the bins. That witness then told defendant's purchasing agent that he would sack it up and send him a bill when sacked. That, pursuant to this agreement, the vendor sacked 2,000 barrels of the said stock, stored the sacks in several bins, nailed up the doors thereto, and marked the doors with the vendee's name and the number of barrels in each bin. That, as soon as this was done, witness wrote and mailed the following letter, accompanied by the bill and sketch referred to therein: That witness received in reply the following letter: "Mr. P. H.
Moore, Mgr., Spocari, Ala. Dear Sir: We received your statement and sketch showing location of the 2,000 bbls. cement at Spocari. We will remit for this cement $2,200.00 before the transfer of the plant is made to the new company, which we presume will be soon. Yours truly, Cook & Laurie Contracting Co., by George Laurie, G. M." That between May 17 and November 2, 1909, witness wrote some seven or eight letters to defendant, requesting payment for the cement, to which defendant never made any reply whatever. Witness further stated that the cement sacked and stored for defendant was good merchantable cement, and that it had never been paid for. It appears, without dispute, that the contemplated transfer of the cement plant actually occurred on May 24, 1909. Plaintiff sues as the assignee of E. P. Benjamin, as trustee; the assignment being proven and not disputed.
Defendant's witness, George Laurie, testified as to the terms of the contract of sale, and stated that nothing was said or agreed upon as to...
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