Elmore, Quillian & Co. v. Parish Bros.

• Citation: 54 So. 203,170 Ala. 499
• Parties: ELMORE, QUILLIAN & CO. v. PARISH BROS.
• Decision Date: 14 January 1911
• Court: Supreme Court of Alabama

54 So. 203

170 Ala. 499

ELMORE, QUILLIAN & CO. v. PARISH BROS.

Supreme Court of Alabama

January 14, 1911

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

Action by Elmore, Quillian & Co. against Parish Bros. From a judgment for defendants on demurrer to the complaint plaintiffs appeal. Affirmed.

Tyson Wilson & Martin, for appellants.

W. O Mulkey, W. L. Parks, and J. M. Chilton, for appellees.

SAYRE J.

This is an action for the breach of two several executory contracts for the sale and purchase of 100 bales of cotton. In two counts the contracts are set out in hæc verba. In other two they are alleged according to their supposed legal effect. Touching the points in controversy, the language of those counts which set out the contracts in verbis is repeated in those counts which set them out according to their supposed legal effect, so that identical questions are raised by the two types of count. In counts 1 and 3 the allegation is that the contract was for the sale of, to quote, "one hundred bales of cotton on the following terms, viz.: Basis, American Strict Middling at 11 5/8, reweighed, f. o. b. Samson. Good Middling 1/8 on Strict Mid. Middling 1/8 off Strict Mid Strict Low Middling 7/16 off Strict Middling. Nothing below Strict Low Middling except at differences to be agreed upon at the time of delivery." Counts 2 and 4 proceed upon a different, though similar, contract in which the last clause of the part quoted is varied as follows: "Grades below Strict Low Middling at differences to be mutually agreed upon at the time of delivery." The demurrer to the complaint, and to each count thereof, takes the point that the contracts declared upon are unenforceable for uncertainty on two accounts: (1) It appears that the defendants had the right under the contracts to deliver cotton of a grade below strict low middling, but it does not appear that any price for grades below strict low middling was agreed upon. (2) It is not shown what the weight of the bales of cotton should be. The trial court sustained demurrer to all counts.

There were two independent contracts and the meaning of each is to be determined upon consideration of its own terms without reference to the other, though they have much in common. On the face of the contracts alleged, whether alleged in hæc verba or according to their supposed legal effect, it appears that the parties have agreed upon no price for cotton of a grade below strict low middling. It is conceded by appellants, and properly so, as we think, that in every executory contract of sale the price to be paid must be fixed or some mode provided for its ascertainment, or else the contract is unenforceable. A complete statement, therefore, of the first ground of demurrer required the assertion, and the demurrer does assert that defendants (appellees) had the right, in the solution of their obligations under the contracts alleged, to deliver cotton of grades below strict low middling, involving, necessarily, a correlative duty on the part of plaintiffs to receive and pay for cotton of lower grades. This assertion raises the first question at hand. Following a stipulation for the delivery of 100 bales of cotton, neither more nor less, of specified grades at a price set down in the contract, the language of the agreement alleged in counts 1 and 3 is: "Nothing below Strict Low Middling except at differences to be agreed upon at time of delivery." Here is an express negation of the right to deliver cotton of a grade below strict low middling unless a future agreement should provide for that method of satisfying the contract. In this there is nothing of legal effect except that the delivery of cotton of a lower grade in discharge of the contract is excluded. As for the rest of the language used, an agreement to enter into an agreement upon terms to be afterwards settled between the parties, is a contradiction in terms, and amounts to nothing. The contract alleged in counts 1 and 3, as for anything yet appearing, was valid and enforceable.

To repeat the language of counts 2 and 4, it is: "Grades below Strict Low Middling at differences to be mutually agreed upon at the time of delivery." The difference between this and the language of the contract alleged in counts 1 and 3 is the difference between affirmation and negation. There is no guide to the intention of the parties but the language used. The marked difference in the language of the two contracts seems to make necessary a difference in the conclusion to be reached in respect to the intention thereby expressed. No language is to be found here which requires that all or any part of the cotton to be delivered in the future should be of a grade equal to or better than strict low middling. No reason can be...