Duncan v. Allen

• Decision Date: 21 March 1926
• Docket Number: 6 Div. 641
• Parties: DUNCAN et al. v. ALLEN et al.
• Court: Alabama Supreme Court

108 So. 357

214 Ala. 551

DUNCAN et al. v. ALLEN et al.

6 Div. 641

Supreme Court of Alabama

March 21, 1926

Rehearing Denied May 13, 1926

Appeal from Circuit Court, Jefferson County; R.V. Evans, Judge.

Action by T.P. Duncan and J.M. Haigler, partners doing business as Texas Grain & Hay Company, against C.A. Allen and Kelly Murphy, partners doing business as Allen & Co. From a judgment over for defendants, plaintiffs appeal. Transferred from the Court of Appeals under Code 1923, § 7326. Reversed and remanded.

Erle Pettus, of Birmingham, for appellants.

David S. Anderson and Thos. J. Wingfield, both of Birmingham, for appellees.

ANDERSON C.J.

The plaintiffs brought suit against the defendants as for a breach of contract for a failure to accept and pay for a certain shipment of oats made in August under a contract hereinafter set forth and discussed. Whether the oats were or were not shipped within the time prescribed by the contract the defendants also contended that they did not come up to the grade provided by the contract, and may have defeated a recovery against them upon this ground. At any rate, counsel in brief, do not seem to question the judgment in favor of the defendants upon the main suit, but the defendants also interposed pleas of recoupment as for a breach of the contract by the plaintiffs and recovered a judgment over, and the insistence of error relates more directly to this branch of the case, and which involves a construction of the contract, especially as to the time of delivery.

The contract was made by telegrams, and, while in the code or cypher form, there is no controversy as to the proper translation of same. The defendants sent plaintiffs the following telegram:

"Birmingham Ala., July 16th, 1919.

"Texas Grain & Hay Co., Waco, Texas.

"Wire lowest price ten thousand bushels of number three red and number three red clipped oats even weight July and August.

"Allen & Company."

Plaintiffs replied:

"Waco, Texas, 7-16-19.

"Allen & Company, Birmingham, Ala.

"Offer ten thousand bushels each number three red seventy cents number three clipped seventy two cents, f.o.b., Waco, July and August delivery, sellers option. Wire answer."

Defendants replied:

"Book ten thousand each number three red seventy number three clipped oats seventy two even weight f.o.b. Waco July and August delivery."

The trial court seems to have proceeded upon the idea that the seller was bound under the contract to deliver a part of the oats in July and a part in August and because 5,000 bushels of each grade were not delivered in July the plaintiffs breached the contract.

A contract which calls for delivery during designated months permits the seller to deliver at any time during the specified months. Baker v. Lehman Co., 186 Ala. 493 65 So. 321. "Where delivery is to be made between certain dates, the seller is not bound to deliver...