Dowling-Martin Grocery Co. v. J.C. Lysle Milling Co., 4 Div. 808

CourtSupreme Court of Alabama
Writing for the CourtTHOMAS, J.
Citation83 So. 486,203 Ala. 491
Docket Number4 Div. 808
Decision Date27 November 1919
PartiesDOWLING-MARTIN GROCERY CO. v. J.C. LYSLE MILLING CO.

83 So. 486

203 Ala. 491

DOWLING-MARTIN GROCERY CO.
v.
J.C. LYSLE MILLING CO.

4 Div. 808

Supreme Court of Alabama

November 27, 1919


Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.

Action for breach of contract begun by attachment by the Dowling-Martin Grocery Company against the J.C. Lysle Milling Company. From judgment sustaining demurrers to the complaint, plaintiff appeals. Affirmed.

The following telegrams and letters are directed to be set out:

"Jan. 4, 1917. The J.C. Lysle Milling Company Leavenworth, Kansas. Wire quick best price White Crest

"Dowling-Martin Grocery Company."

Telegram:

"Jan. 4, 1917. Dowling-Martin Grocery Co., Ozark, Ala Quote White Crest $10.80 basis cotton delivered. J.C. Lysle Milling Co."

Letter:

"Jan. 4, 1917. Dowling-Martin Grocery Co., Ozark, Ala. Received your wire asking for price on Crest, and we promptly wired you as per the inclosed telegram, which we now beg to confirm. The wheat market has made a tremendous advance, having gone up over one dollar per barrel in the last week.

"J.C. Lysle Milling Co."

Telegram:

"Jan. 8, 1917. J.C. Lysle Milling Co., Leavenworth, Kansas. Wire best price White Crest. Do your best for we are having to meet Malone price.

"Dowling-Martin Grocery Company."

Telegram:

"Jan. 8, 1917. Dowling-Martin Grocery Co., Ozark, Ala. Cannot quote lower than last price named. J.C. Lysle Milling Company."

Telegram:

"Jan. 8, 1917. J.C. Lysle Milling Co., Leavenworth, Kansas. Book two cars.

"Dowling-Martin Grocery Company."

Letter:

"Jan. 10, 1917. Dowling-Martin Grocery Co., Ozark, Ala. We overlooked confirming the acceptance we received late Monday evening for two cars of flour on the basis of $10.80 for White Crest in cotton delivered Ozark. We are very much pleased to receive this contract and now await your shipping directions. The wheat market is very strong and we look for very much higher prices. Soliciting the continuance of your valued favors, we beg to remain, J.C. Lysle Milling Company."

Letter:

"March 8, 1917. J.C. Lysle Milling Company, Leavenworth, Kansas. Unless otherwise instructed, we would be glad when forwarding our shipments of flour if you can consistently observe the following routing: via Southern Railway System to Atlanta, A. & W.P. to Montgomery, care A.C.L., which will be very much appreciated.

"Dowling-Martin Grocery Co."

Telegram:

"March 8, 1917. J.C. Lysle Milling Company, Leavenworth, Kan. Wire best price on White Crest. Dowling-Martin Grocery Co."

Telegram:

"Mar. 28, 1917. Dowling-Martin Grocery Co., Ozark, Ala. White Crest worth $11.05 today. J.C. Lysle Milling Co."

Letter:

"March 28, 1917. Dowling-Martin Grocery Co., Ozark, Ala. We received your wire requesting us to quote you price on White Crest. We promptly wired you as per the inclosed message, which we beg to confirm. The market is very strong and continues to advance.

"J.C. Lysle Milling Co."

Telegram:

"March 30, 1917. J.C. Lysle Milling Co. Leavenworth, Kan. Ship at once on contract two hundred forty sacks forty-eights, twelve hundred sacks twenty-fours White Crest, same route. Rush shipment.

"Dowling-Martin Grocery Co."

Telegram:

"March 30, 1917. Dowling-Martin Grocery Co., Ozark, Ala. Telegram received. Your contract expired March 8, 1917. Price to-day $11.50 Crest. Shall we ship?

"J.C. Lysle Milling Co."

Letter:

"March 30, 1917. Dowling-Martin Grocery Co., Ozark, Ala. We received your wire this morning with specifications for car of flour, which you requested us to ship on your contract. We find on reference to our orders that this car of flour was booked for you for sixty days' shipment, and that the contract expired March 8. We answered promptly as per inclosed message, which we beg to confirm. We regret that you did not see your way clear to order out this flour within the contract period.

"J.C. Lysle Milling Co."

Telegram:

"March 30, 1917. J.C. Lysle Milling Co. Leavenworth, Kan. Answering wire, think you should have advised that you were canceling. Confirmation did not specify the date of expiration contract. We insist that you ship at contract price. Answer.

"Dowling-Martin Grocery Co."

Telegram:

"March 30, 1917. Dowling-Martin Grocery Co., Ozark, Ala. We never book for shipment over sixty days and cannot accept directions now. J.C. Lysle Milling Co."

Letter:

"March 30, 1917. Dowling-Martin Grocery Co., Ozark, Ala. Received your second wire in regard to the flour we booked for you in January, and we answered promptly that we never book flour for more than sixty days' shipment, and we therefore, cannot receive this booking at this late date. We regret very much, in view of the very strong advance of the market, that you did not order the flour out within the period of sixty days. J.C. Lysle Milling Co."

Telegram:

"April 28, 1917. J.C. Lysle Milling Co., Leavenworth, Kan. Wire best prices on White Crest.

"Dowling-Martin Grocery Company."

Letter:

"April 28, 1917. Dowling-Martin Grocery Co., Ozark, Ala. We have your wire asking for price on White Crest to-day. We did not answer for the reason that we have withdrawn from the market, pending the settlement of the violent fluctuations that are now taking place. We regret that we are not in position to serve you. J.C. Lysle Milling Company."

Telegram:

"May 8, 1917. J.C. Lysle Milling Company, Leavenworth, Kan. Ship at once on contract one hundred and forty barrels White Crest in forty-eight sacks; three hundred barrels in twenty-four sacks. Ship at once, or we will buy for your account, charging you with difference. Dowling-Martin Grocery Co."

Letter:.

"May 8, 1917. Dowling-Martin Grocery Co., Ozark, Ala. We have your wire to-day with specifications for three hundred and forty barrels flour which you state is due you on contract, and that if we do not ship, you will buy and charge same to our account. We suppose that you have reference to the two cars of flour you bought on Jan. 8th, but failed to take out in sixty days, our usual contract period. We will have to decline to honor your specifications, and if you think you can sustain your position in court, you of course are at perfect liberty to take any action that you desire. For you to come in four months
after you made this purchase with specifications and expect us to reinstate the order, is something that we cannot see our way clear to do.

"J.C. Lysle Milling Co."

J.E.Z. Riley, of Ozark, and T.M. Espy; of Dothan, for appellant.

Farmer, Merrill & Farmer, of Dothan, for appellee. [83 So. 488]

THOMAS, J.

On the trial demurrer was sustained to the complaint, plaintiff declined to plead further, and defendant had judgment final.

Directing attention to the ruling on demurrer, it is pertinent to observe that Dowling-Martin Grocery Company sued J.C. Lysle Milling Company to recover damages for the breach of an executory contract in which the former purchased of the latter certain flour, to be delivered on orders or shipping directions. The contract, made on January 8, 1917, is set out in some counts, and its legal effect is averted in others. B.R., L. & P. Co. v. Littleton, 77 So. 565. The letters and telegrams of January 4 to May 8, 1917, inclusive, constituting the contract and evidencing its alleged breach, set out in the complaint, will be embraced by the reporter of decisions in his statement of facts.

It is averred that plaintiff ordered defendant to ship the flour on, respectively, March 30 and May 8, 1917, and that the latter declined to do so on the ground of unreasonable delay in complying with the terms of the contract and ordering the shipment made; further, that there was no time limit fixed by the parties within which defendant should ship the flour, or within which plaintiff would make payment therefor and order shipment. Defendant says that, no time limit for compliance being fixed, payment or direction and...

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13 practice notes
  • Lawrenceburg Roller Mills Co. v. Chas. A. Jones & Co., 6 Div. 998
    • United States
    • Supreme Court of Alabama
    • February 5, 1920
    ...provisions of the contract. Home Guano Co. v. International Agri. Corp., 85 So. 713; Dowling-Martin Groc. Co. v. J.C. Lysle Mill. Co., 83 So. 486; Scruggs & Echols v. Riddle, 171 Ala. 350, 361, 362, 54 So. 641. When the alleged confirmatory letter was offered in evidence, due objection was ......
  • Montgomery Enterprises v. Empire Theater Co., 3 Div. 446
    • United States
    • Supreme Court of Alabama
    • June 30, 1920
    ...had in view and the subject dealt with therein. Elliott v. Howison, 146 Ala. 568, 40 So. 1018; Dowling-Martin Co. v. Lysle Milling Co., 203 Ala. 491, 83 So. 486; Home Guano Co. v. International Agri. Corp., 85 So. 713; McFadden v. Henderson, 128 Ala. 221, 29 So. 640. If a contract is of dou......
  • Mobile Electric Co. v. Nelson, 1 Div. 235.
    • United States
    • Supreme Court of Alabama
    • May 31, 1923
    ...So. 713; J. C. Lysle Mill. Co. v. North. Ala. Gro. Co., 201 Ala. 222, 223, 77 So. 748; Dowling-Martin Gro. Co. v. J. C. Lysle Mill. Co., 203 Ala. 491, 83 So. 486; Terrell v. Nelson, 177 Ala. 596, 58 So. 989; Terrell v. Nelson, 199 Ala. 436, 74 So. 929, 931; Elliott v. Howison, 146 Ala. 568,......
  • Zimmern v. Standard Motor Car Co., 1 Div. 184
    • United States
    • Supreme Court of Alabama
    • April 21, 1921
    ...not inconsistent with a sale of personal property that it be delivered at a subsequent time. Dowling-Martin Gro. Co. v. Lysle Mill. Co., 203 Ala. 491, 83 So. 486; Lysle Mill. Co. v. North Ala. Groc. Co., 201 Ala. 222, 77 So. 748; Lawrenceburg Roller Mills Co. v. Jones, 85 So. 719; Brandon P......
  • Request a trial to view additional results
13 cases
  • Lawrenceburg Roller Mills Co. v. Chas. A. Jones & Co., 6 Div. 998
    • United States
    • Supreme Court of Alabama
    • February 5, 1920
    ...provisions of the contract. Home Guano Co. v. International Agri. Corp., 85 So. 713; Dowling-Martin Groc. Co. v. J.C. Lysle Mill. Co., 83 So. 486; Scruggs & Echols v. Riddle, 171 Ala. 350, 361, 362, 54 So. 641. When the alleged confirmatory letter was offered in evidence, due objection was ......
  • Montgomery Enterprises v. Empire Theater Co., 3 Div. 446
    • United States
    • Supreme Court of Alabama
    • June 30, 1920
    ...had in view and the subject dealt with therein. Elliott v. Howison, 146 Ala. 568, 40 So. 1018; Dowling-Martin Co. v. Lysle Milling Co., 203 Ala. 491, 83 So. 486; Home Guano Co. v. International Agri. Corp., 85 So. 713; McFadden v. Henderson, 128 Ala. 221, 29 So. 640. If a contract is of dou......
  • Mobile Electric Co. v. Nelson, 1 Div. 235.
    • United States
    • Supreme Court of Alabama
    • May 31, 1923
    ...So. 713; J. C. Lysle Mill. Co. v. North. Ala. Gro. Co., 201 Ala. 222, 223, 77 So. 748; Dowling-Martin Gro. Co. v. J. C. Lysle Mill. Co., 203 Ala. 491, 83 So. 486; Terrell v. Nelson, 177 Ala. 596, 58 So. 989; Terrell v. Nelson, 199 Ala. 436, 74 So. 929, 931; Elliott v. Howison, 146 Ala. 568,......
  • Zimmern v. Standard Motor Car Co., 1 Div. 184
    • United States
    • Supreme Court of Alabama
    • April 21, 1921
    ...not inconsistent with a sale of personal property that it be delivered at a subsequent time. Dowling-Martin Gro. Co. v. Lysle Mill. Co., 203 Ala. 491, 83 So. 486; Lysle Mill. Co. v. North Ala. Groc. Co., 201 Ala. 222, 77 So. 748; Lawrenceburg Roller Mills Co. v. Jones, 85 So. 719; Brandon P......
  • Request a trial to view additional results

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