Dalton v. Bunn & Allison

Decision Date28 February 1903
Citation137 Ala. 175,34 So. 841
PartiesDALTON v. BUNN & ALLISON. [a1]
CourtAlabama Supreme Court

Appeal from Circuit Court, Madison County; Osceola Kyle, Judge.

Action by Bunn & Allison against A. L. Dalton. From a judgment for plaintiffs, defendant appeals. Reversed.

The defendant pleaded the general issue and the following special pleas: "(1) The defendant alleges that upon the 23d day of November, 1898, through W. L. McLendon, his agent, he entered into a contract in writing with Bunn & Allison for the purchase of certain amounts and varieties of wood to be furnished by said Bunn & Allison to defendant. That said agreement was in words and figures as follows, to wit 'Stevenson, Alabama, Nov. 23d, 1898. We agree to furnish A. L. Dalton 10 or 12 cars of 4 ft wood a week, ash, oak hickory, mulberry at 1.50 per cord f. o. b. cars Crow Creek or Stevenson, and A. L. Dalton agrees to pay for same every Saturday until the 20th of January, and we agree to furnish a thousand cord in this time. W. Y. Bunn & T. F. Allison. Recd of A. L. Dalton ten dollars on the above contract. W. Y. Bunn & T. F. Allison.' And defendant alleges that he entered into said contract in good faith, and has at all times stood ready to comply with his part of the agreement, but he alleges that the said Bunn & Allison failed and refused to comply with their part of the contract, in this: that they did not furnish to defendant either the amount of the wood specified in the contract, to wit, 10 to 12 cars per week nor the quality of the wood specified in the agreement, but on the contrary, furnished wood of a mixed variety, including some oak, ash, hickory, and mulberry, but also a large quantity of sweet gum, elm, hackberry, sycamore, and ironwood. That by reason of said mixture of soft woods named above in the cars, when delivered by plaintiff to defendant, the same became unsalable and of no value to defendant. That, after the defendant discovered that the said cars were not loaded with wood as specified in the contract, he notified the plaintiffs not to ship any more such wood, and that after such notice plaintiffs continued to load said cars of wood, and that said defendant refused to accept same, on account of wood not coming up to specifications of the contract. Defendant further alleges that he refused to accept cars numbered 22,263, 6,778, 23,732, 736, 1,584, 26,132, 5,171, 5,260, 5,138, 22,429, 20,028, 6,372, 8,032, 5,863, 554, 11,392, before they were shipped, and that said cars of wood were never shipped to defendant and never received by him, and that he received no benefit from the same, in that they were not loaded with such wood as specified in the contract, and were unsalable. (2) Defendant, for further special plea, says that, at the time he entered into the contract set out in plea No. 1, he was engaged in a contract to furnish wood to the government for the use of United States troops in the city of Huntsville; that the plaintiffs knew at the time of the making of said contract that the wood to be furnished to defendant was to fill defendant's said contract with the government officials; that defendant accepted and paid for such wood as came up to the specifications of the contract with plaintiffs, and at all times was willing and anxious to carry out his part of the agreement with plaintiffs; but defendant alleges that the plaintiffs failed to furnish such wood as was specified in the contract, and that by reason of such breach of the contract he was unable to sell the wood sued for and not paid for, and was forced to buy wood from other sources to supply his contract with the government of the United States. That defendant received and paid for all cars of wood as they were delivered until the receipt of cars numbered 9,382, 2,302, 2,495, 9,612, which was inspected by the government officials and rejected by them, after which rejection defendant notified plaintiffs not to ship any more wood. (3) For further special plea, defendant says that plaintiffs breached their agreement with defendant in this: that they failed to deliver the number of cars per week as specified in the agreement, and that by reason of said breach defendant was unable to carry out his contract with the government of the United States, and suffered great damage. (4) As further special plea, defendant says that under his agreement with plaintiffs they were to deliver to him salable and merchantable wood, and that plaintiffs failed or refused to deliver such wood, in that it was not according to the specifications of the agreement, and could not be sold by defendant on the market. (5) As further special plea, defendant says that some time soon after the defendant had notified plaintiffs not to ship him any more wood, to wit, on or about January 1, 1899, plaintiffs had a verbal agreement with defendant to the effect that the defendant should send a government inspector to inspect such wood as was loaded on the cars at Stevenson, Ala., or Crow Creek, Ala., and that defendant would take all such wood as would be accepted by the said inspector, at the agreed price of $1.50 per cord; that defendant should have reasonable time to attend to some other matters and return to Stevenson, and that he would then have the inspector to inspect the wood; that, before the defendant could return to Stevenson, plaintiffs had filed suit, and that defendant could not carry out his agreement for the acceptance of such inspected wood. (6) As further special plea, defendant says that plaintiffs have broken their agreement, in that they neither furnished the amount or the quality of the wood demanded by the contract, and that by reason of such breaches he refused to accept any wood after said breaches."

The defendant's demurrer filed to each of the special pleas was sustained. Thereupon the defendant filed the following amended special pleas: (1) The defendant alleges that upon the 23d day of November, 1898, through W. L. McLendon, his agent, he entered into a contract in writing in words and figures as follows, to wit: 'Stevenson, Alabama, Nov 23d, 1898. We agree to furnish A. L. Dalton 10 or 12 cars of 4 ft wood a week ash, oak, hickory, mulberry at 1.50 per cord f. o. b. cars, Crow Creek or Stevenson. And A. L. Dalton agrees to pay for the same every Saturday, until the 20th of January, and we agree to furnish a thousand cord in this time. W. Y. Bunn & T. F. Allison. Recd. of A. L. Dalton ten dollars on above contract. W. Y. Bunn & T. F. Allison.' Defendant alleges that he entered into said contract in good faith, and has stood ready to comply with his part of the agreement, but said Bunn & Allison failed and refused to comply with their part of said contract, in that they did not furnish defendant 10 or 12 cars 4-foot wood a week, ash, oak, hickory, mulberry, at $1.50 per cord f. o. b. cars Crow Creek or Stevenson, by the 20th of January, 1899, by which failure and default on part of plaintiffs, defendant suffered damages to the amount of $1,000. Defendant avers that the plaintiffs under said contract delivered, according to the terms of the same, thirty-seven car loads of wood, each car,...

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11 cases
  • Tidmore v. Mills
    • United States
    • Alabama Court of Appeals
    • August 15, 1947
    ... ... National Union Fire Ins. Co. v. Morgan, 231 Ala ... 640, 166 So. 24; Dalton v. Bunn & Allison, 137 Ala. 175, ... 34 So. 841 ... We ... entertain the view that a ... ...
  • B. F. Sturtevant Company v. Ford Manufacturing Company
    • United States
    • Missouri Supreme Court
    • October 11, 1926
    ...Mo.App. 95; Stewart v. Sacks, 96 S.W. 1091; American Theatre Co. v. Siegel Cooper & Co., 211 Ill. 145, 4 L. R. A. (N. S.) 1167; Dalton v. Bunn, 137 Ala. 175; Mackey Schwartz, 15 N.W. 576; MacDonald Foundry Co. v. Glacier Metal Co., 69 So. 769. (d) The statement that it took the blower to av......
  • National Union Fire Ins. Co. v. Morgan
    • United States
    • Alabama Supreme Court
    • January 23, 1936
    ... ... repeated. Code, § 9458. The sufficiency of a pleading should ... be tested by demurrer. Dalton v. Bunn & Allison, 137 ... Ala. 175, 34 So. 841 ... The ... demurrer filed to these ... ...
  • Huntsville Knitting Mills v. Butner
    • United States
    • Alabama Supreme Court
    • May 24, 1917
    ...a motion to strike. We cannot say however, in the absence of the pleas, that they were not frivolous, irrelevant, or prolix. Dalton v. Bunn, 137 Ala. 175, 34 So. 841; L. & N.R.R. Co. v. Smith, 163 Ala. 141, 50 So. 241. If, however, as asserted by defendant, pleas 2 and 3 appearing in the re......
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