Elliott v. Howison

• Decision Date: 28 April 1906
• Citation: 40 So. 1018,146 Ala. 568
• Parties: ELLIOTT v. HOWISON.
• Court: Alabama Supreme Court

40 So. 1018

146 Ala. 568

ELLIOTT v. HOWISON.

Supreme Court of Alabama

April 28, 1906

Appeal from Circuit Court, Mobile County; William S. Anderson Judge.

"To be officially reported."

Action by Allen P. Howison against J. D. Elliott. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The complaint in this cause was in the following language "(1) Plaintiff claims of the defendant $1,200 due from him by account on the 1st day of September, 1900. (2) Plaintiff claims of the defendant the further sum of $1,200 for merchandise, goods, and chattels sold by plaintiff to defendant on, to wit, the 1st day of September, 1900, which sums of money, with interest thereon, are still due and unpaid. (3) Plaintiff claims of the defendant the further sum of $1,200 for the breach of an agreement entered into by him on, to wit, the 13th day of August, 1900, by which he promised to receive 300 round pine pilings from the plaintiff, and to pay the plaintiff therefor $4 each; and the plaintiff avers that the defendant has breached said contract, in that he has refused to pay for any of said piling, although a large portion thereof was delivered to him, and although the plaintiff was ready and willing to comply with his portion of said contract. (4) The plaintiff claims of the defendant the further sum of $1,200, for this that on the 13th day of August, 1900, the plaintiff and defendant did enter into a contract by which the defendant did purchase and agree to receive from the plaintiff 300 round pine piling, each 10 inches in diameter at the small end, from said plaintiff, and did agree to pay the plaintiff therefor the sum of $4 each; and plaintiff avers that he did cut and store near Randolph, in Bibb County, Ala., the said 300 round pine piling, and that the same was so cut and stored and ready for delivery on the 1st day of September 1900; and plaintiff avers that he was ready and willing at all times from the 1st day of September, 1900, to carry out and perform his part of said contract, but the plaintiff avers that the said defendant has breached his contract, in this: that he has wholly failed and refused to accept said piling and receive the same, though the same has been since the 1st day of September, 1900, and now are cut and ready for delivery, and that plaintiff is and was willing and ready to comply with his part of said contract. Wherefore this suit. (5) And the plaintiff claims of the defendant the further sum of $1,200, for this: that the said plaintiff and defendant did enter into a contract on the 13th day of August which is in words and figures as follows, to wit: 'Randolph Alabama, Aug. 13, 1900. Mr. J. D. Elliot, Hickory, N. C.--Dear Sir: I will furnish you three hundred round pine piling, ten inches at small end and forty feet long, at $4.00 each, f. o. b. cars on Southern Railway Co.'s tracks, and you to pay me for them as they are delivered. Yours very truly, Allen P. Howison, Brand.' 'Randolph, Ala. Aug. 13, 1900. Mr. Allen P. Howison, Randolph, Ala.--Dear Sir: I accept your proposition of this date to furnish the three hundred piling f. o. b. cars on Southern Railway track at $4.00 each. The above piling to be ten inches in diameter at small end, and to be practically straight, to be paid for as deliveries made. Yours truly, J. D. Elliott. H. T. Elliott. Ship to Southern Railway Co., c/o J. D. Elliott, Mobile. Ala.' And plaintiff avers that he cut and had the said 300 round pine piling, each 10 inches in diameter at the small end, at or near Randolph, in the county of Bibb, ready for shipment f. o. b. cars of the Southern Railway; that the defendant did wholly fail and refuse to receive the said 300 round pine piling, each 10 inches in diameter, and did instruct the said plaintiff not to ship the same, to the damage of the said plaintiff in the sum of $1,200."

The defendant interposed the following pleas: (1) The general issue. (2) "And for further special plea to each count of the complaint, pleaded separately to each, defendant says that on the 13th day of August, 1900, he entered into a contract with plaintiff by which plaintiff agreed to furnish and defendant agreed to take 300 round pine piling, said piling to be 40 feet long, 10 inches in diameter at the small end, and to be practically straight. Thereafter on, to wit, August 25, 1900, plaintiff shipped from Randolph, Ala., to defendant, at Mobile, Ala., 32 of said 300 round pine piling under said contract, which were all of the piling shipped under said contract; but upon examination at Mobile defendant found said 32 piling to be less than 10 inches in diameter at the small end, to wit, between 7 inches and 9 1/2 inches at the small end, and defendant refused to accept them, and notified plaintiff that the piling was subject to his order. On, to wit, the 28th day of August, 1900, defendant's agent or superintendent visited Randolph, Ala., and the plaintiff then and there exhibited to defendant's said agent or superintendent the large quantity of, to wit, 100 piling, which plaintiff stated he had cut and which he intended to ship to defendant under said contract. Defendant avers that all of said 100 pine piling, except about 5 or 6, were less than 10 inches in diameter at the small end. Defendant further avers that, being in urgent need for said 300 round pine piling, as plaintiff well knew, defendant on the 1st day of September, 1901, upon being informed by defendant's said agent or superintendent of the size of said 100 pine piling which plaintiff intended to ship to defendant as aforesaid, he (defendant) terminated and rescinded said contract and so notified plaintiff, and thereafter purchased said 300 round pine pilings from another party. Wherefore defendant says he is not liable in this action."

The plaintiff demurred to the second plea, as pleaded to the first count, because it is not alleged in said plea that the matters therein alleged have any reference to the account sued on, and it is confessed by said plea that there is $1,200 due from defendant to plaintiff, and no fact in avoidance thereof is set up; and because it does not appear from said plea that by the terms of the contract plaintiff was obligated to deliver said piling by the 1st day of September, 1900, or show any breach of said contract which justified defendant to rescind same. And to the second plea as pleaded to the second count of the complaint, he demurs, because by said plea it is confessed that defendant is indebted to plaintiff for merchandise, goods, and chattels, and no fact in avoidance thereof is set up, and because it is not alleged that the goods, wares, and merchandise sued for consist of the piling mentioned in said plea; and to the plea as pleaded to the third, fourth, and fifth counts of the complaint he demurs, because it is not alleged in said plea that by the terms of the contract the plaintiff agreed to furnish the defendant the piling by September 1, 1900, and because said plea does not allege any breach of contract by the plaintiff, in that it does not allege any failure or refusal on part of the plaintiff to deliver the piling contracted for within a reasonable time, and because it appears from said count that the plaintiff was ready and willing to deliver the 300 piling in accordance with the said contract, and this fact is not denied in said plea, and it is immaterial whether plaintiff delivered or was prepared to deliver other piling in addition thereto not in accordance with the contract. And to the second plea as pleaded to the third count of the complaint he demurs, because, being in confession and avoidance, the plaintiff admits thereby the allegation of said third count that a large portion of the 300 piling contracted for had been delivered to the defendant, and plaintiff was willing and ready to comply with its portion of the contract.

These demurrers were sustained, and defendant filed the following additional plea: "(3) And for further special plea to each count of the complaint, pleaded separately to each defendant says that the respective amount sued for in the first, second, third, fourth, and fifth counts of the complaint are based solely upon a contract entered into by and between plaintiff and defendant on the 13th day of August, 1900, by which plaintiff agreed to furnish and defendant agreed to take 300 round pine piling, said pilings to be 40 feet long and 10 inches in diameter at small end, and to be practically straight. Thereafter on the 25th day of August, 1900, plaintiff shipped from Randolph, Ala., to defendant at Mobile, 32 of said 300 piling under said contract, which were all of the piling shipped under said contract, but upon examination at Mobile defendant found 32 piling to be less than 10 inches in diameter at the small end, to wit, between 7 inches and 9 1/2 inches at the small end, and defendant refused to accept them, and notified plaintiff that the piling was subject to his order. On the 28th day of August, 1900, defendant's agent or superindentent visited Randolph, Ala., and plaintiff then and there exhibited to defendant's said agent a large quantity of piling, to wit, 100 piling, which plaintiff stated he had cut and which he would ship to defendant under said contract. Defendant avers that all of said 100 piling were less than 10 inches in diameter at the small end, except about 5 or 6. Defendant further avers that, being in urgent need for said 300 round pine piling to complete a contract which he had with the Southern Railway Company, which plaintiff well knew, defendant, on the 1st day of September, 1900, upon being informed by defendant's said agent as aforesaid of the size of said 100 piling which plaintiff intended to ship the defendant, defendant terminated and rescinded said contract and so...