Crandall Pettee Co. v. Jebeles & Colias Confectionery Co., 140

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, J.
• Citation: 69 So. 964,195 Ala. 152
• Decision Date: 14 October 1915
• Docket Number: 140
• Parties: CRANDALL PETTEE CO. v. JEBELES & COLIAS CONFECTIONERY CO.

69 So. 964

195 Ala. 152

CRANDALL PETTEE CO.
v.
JEBELES & COLIAS CONFECTIONERY CO.

No. 140

Supreme Court of Alabama

October 14, 1915

Rehearing Denied Nov. 18, 1915

Appeal from City Court of Birmingham; H.A. Sharpe, Judge.

Action by the Crandall Pettee Company against the Jebeles & Colias Confectionery Company. Judgment for defendant, and plaintiff appeals. Transferred from the Court of Appeals under section 6, Act of April 18, 1911 (Laws 1911, p. 449). Reversed and remanded.

The first four counts were on the common counts. The fifth count is as follows:

Plaintiff claims of defendant $500 as damages for the breach of an executory contract for that heretofore on, to wit September 2, 1911, defendant ordered of plaintiff certain goods, wares, and merchandise having to be made to order by plaintiff, should plaintiff accept said order, which said goods, wares, and merchandise were to be delivered to defendant in the city of New York, state of New York; that afterwards, on, to wit, September 11, 1911, plaintiff accepted said order of defendant upon the condition that if defendant would make a remittance to plaintiff of $250 on account and the balance of said order to become due in 30 days; that defendant agreed to the condition on which said order was accepted by plaintiff, after which plaintiff proceeded to make, manufacture, and prepare for delivery the goods, wares, and merchandise ordered by defendant, which order had been accepted upon certain terms heretofore named to which terms defendant had agreed as aforesaid, and after the said goods, wares, and merchandise had been made up plaintiff, in accordance with the order of defendant and after said goods, wares, and merchandise were made or manufactured for delivery defendant, did on, to wit September 20, 1911, countermand and cancel the order, which countermand and cancellation of said order plaintiff refused to accept, but defendant refused to receive said goods wares, and merchandise so ordered by it, and made or manufactured by plaintiff for defendant. And plaintiff avers that, while it had performed all its part of said agreement as heretofore stated, defendant breached its said agreement or contract, in this, that defendant failed and refused to remit plaintiff the $250 on account as per agreement, and failed and refused to receive and accept said goods, wares, and merchandise after same had been ordered, made, or manufactured for defendant by plaintiff, as was its duty to do, and on account of defendant, countersigned, and on account of the refusal of defendant to send said $250, and to accept and receive said goods, wares, and merchandise contained in said order and pay for them in 30 days from, to wit, September 20, 1911, plaintiff suffered great loss and damage, to wit, $500. Wherefore, it sues for said damages, together with interest thereon.

The demurrers were: Misjoinder of causes of action; it does not appear that plaintiff has not received payment for any damages which may have been sustained before the bringing of this suit; it does not clearly appear that plaintiff actually sustained any damage or loss by reason of the alleged breach; no allegation is made of any attempt on plaintiff's part to sell said goods, wares, and merchandise in the market, since the alleged repudiation or cancellation of the agreement. The damages claimed were too remote, speculative, and conjectural.

The following is a telegram sent by defendant to plaintiff: "Terms satisfactory. Ship at once. Mailing check." Second telegram: "Wired you some days ago would comply with your terms and send check for $250, which will be mailed immediately upon notice that shipment has been made. Have you shipped? Answer yes or no by wire, our expense immediately." Plaintiff replied: "Greater portion of order ready for shipment, waiting for check." On September 20, 1911, the following message was sent by defendant to plaintiff: "Cancel any and all orders you have for us." To which plaintiff replied, declining to cancel the order of cancellation, and insisted on a fulfillment of the contract. The president of the corporation testified that he did not see or sign any of the telegrams, but they were sent and signed in the name of the company, by the bookkeeper Daniels, and that the telegrams did not contain what he told Daniels to send. Plaintiff contended that the contract was made out and signed, while defendants contended that it was a mere order written down by the salesman and not shown to or signed by them, and no invoice left with them, or duplicate order, and none afterwards sent them, and that the order contained many things which they did not...