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,...