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

• Decision Date: 14 October 1915
• Docket Number: 140
• Citation: 69 So. 964,195 Ala. 152
• Court: Alabama Supreme Court
• 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 buy from a salesman. The other facts sufficiently appear.

Thompson, Thompson & Bachrach, of Birmingham, for appellant.

F.E. Blackburn, of Birmingham, for appellee.

THOMAS J.

If there is any evidence which tends to establish the plaintiff's cause, the trial court should not withdraw the case from the jury by giving the affirmative charge. Tobler v. Pioneer Min. Co., 166 Ala. 517, 52 So. 86; Shipp et al. v. Shelton, 69 So. 102; McCormack v. Lowe, 151 Ala. 313, 44 So. 47; M.J. & K.C.R.R. Co. v. Bromberg, 141 Ala. 258, 37 So. 395; Amerson v. Corona Coal & Iron Co., 69 So. 601.

Where there are two versions of a contract in evidence, charges requested by one party to the suit, based on his version alone, are properly refused. Bates v. Harte, 124 Ala. 427, 26 So. 898, 82 Am.St.Rep. 186. The general rule is that the affirmative charge should never be given when there is a conflict in the evidence as to any material fact in issue, or when the evidence is open to reasonable inference of a material fact unfavorable to the party requesting the charge, or when the finding depends upon uncertain reasonable inference that may be drawn by the jury. Baker v. Patterson, 171 Ala. 88, 55 So. 135; John v. Birmingham Co., 172 Ala. 603, 55 So. 801; Carter v. Fischer, 127 Ala. 52, 28 So. 376; Bomar v. Rosser, 123 Ala. 641, 26 So. 510; Bufford v. Raney, 122 Ala. 565, 26 So. 120; L. & N.R.R. Co. v. Lancaster, 121 Ala. 471, 25 So. 733; Cole v. Propst Bros., 119 Ala. 99, 24 So. 884; Abbott v. City of Mobile, 119 Ala. 595, 24 So. 565; Anderson v. Railroad Co., 109 Ala. 128, 19 So. 519.

A careful consideration of the conflicting tendencies of the evidence convinces us that the questions involved under the issue of fact presented should have been submitted to the jury under proper instructions.

Nor did the testimony of the defendant and of his former bookkeeper, as to the private instructions of defendant to its agent touching the telegram to be sent plaintiff, authorize the giving of the general charge.

In Ray v. Fidelity-Phoenix Fire Ins. Co., 187 Ala. 91, 95, 65 So. 536-538, the opinion, discussing the principle just here being treated, proceeds as follows:

"It may be assumed that this agent's express authority was limited to the mere making of an investigation and a report of the result. But plaintiff had no notice of that limitation, and this agent's authority as to third persons was governed by the nature of the business intrusted to him. His acts, within the usual scope of the business intrusted to such agents, provided plaintiff acted in good faith and was not guilty of negligence, bound his principal despite his private instructions, for the authority of an agent, as to those with whom he deals, is what it reasonably appears to be."

On receipt of the telegram from the defendant, if the plaintiff acted thereon in good faith, and was not guilty of negligence, then he could not be prejudiced by the private instructions of the principal of the agent, in the absence of knowledge that the agent was...