George F. Craig & Co. v. Pierson Lumber Co.

• Decision Date: 16 January 1913
• Citation: 60 So. 838,179 Ala. 535
• Parties: GEORGE F. CRAIG & CO. v. PIERSON LUMBER CO.
• Court: Alabama Supreme Court

60 So. 838

179 Ala. 535

GEORGE F. CRAIG & CO. v. PIERSON LUMBER CO.

Supreme Court of Alabama

January 16, 1913

Appeal from City Court of Mobile; O. J. Semmes, Judge.

Assumpsit by the Pierson Lumber Company against George F. Craig & Co. Judgment for plaintiff, and defendant appeals. Affirmed.

The suit was instituted and served February 19, 1907. Plea 7 was filed February 18, 1911. It sets out the contract alleged to have been made between the parties, and alleges a failure to perform on the part of the lumber company, and damages arising from the failure to perform, which are offered to be recouped against the sum claimed, with judgment over for the excess. The plaintiff filed motion to strike the plea because it was not filed within the time required by the rules of practice of the court, and because it set up no new matter of defense not heretofore pleaded in pleas filed within the time allowed.

The following are the charges referred to as given at the request of the plaintiff:

(A) "I charge you, gentlemen of the jury, if you believe from the evidence that the defendant extended the time of plaintiff's performance of the contract until March 8 1906, as is alleged in the sixth plea, and you further believe from the evidence that after March 8, 1906, the defendant purchased more lumber to take the place of that plaintiff had contracted to furnish, and you further find from the evidence that on March 8, 1906, the market price of the lumber plaintiff contracted to furnish was not in excess of the contract price, you must find for the plaintiff."

(B) "I charge you, gentlemen of the jury, the defendant had no right to purchase lumber to be delivered f. o. b. cars Savannah, Ga., to fill the contract made by plaintiff with defendant, unless you are reasonably satisfied from the evidence that such price was as cheap as defendant could get the same lumber delivered f. o. b. cars Mobile, Ala."

(C) "I charge you, gentlemen of the jury, the plaintiff contracted to sell defendant lumber to be delivered f. o. b cars Mobile, Ala., and defendant cannot set off a claim for damages for plaintiff's breach of contract for purchase of lumber for delivery elsewhere, unless the purchase for delivery elsewhere was as reasonable as purchase could have been made with delivery f. o. b. cars Mobile, Ala."

(D) "I charge you, gentlemen of the jury, that if you are reasonably satisfied from the evidence that defendant purchased no lumber to supply the place of that plaintiff contracted to furnish after plaintiff breached its contract, and you further find that the evidence does not show at the time of breach any specified difference in the market and contract price, you must find for the plaintiff."

Webb & McAlpine, of Mobile, for appellant.

Inge & Armbrecht, of Mobile, for appellee.

SOMERVILLE J.

Plaintiff sued to recover the purchase price of lumber sold and delivered to defendant. The defense was that plaintiff failed to deliver to defendant the greater part of the lumber stipulated for in the written contract mutually entered into, whereby defendant was compelled to go into the market and purchase such lumber at prices considerably in excess of the contract price, to his damage in a sum in excess of the amount sued for. The assignments of error are based on the action of the court in striking from the file defendant's plea No. 7, and in giving several written charges at the instance of plaintiff.

On the former appeal of this case (Craig & Co. v. Pierson Lumber Co., 169 Ala. 548, 53 So. 803), the facts being substantially the same as here exhibited, it was ruled that the present charges A, B, C, and D (there numbered, respectively, 6, 14, 15, and 18) were properly given for plaintiff. We see no reason for a departure from the conclusions there reached. As there stated, if the charges were misleading as applied to the evidence, appellant's remedy was to ask for explanatory charges.

At plaintiff's request in writing, the court gave to the jury charge K, viz.: "The measure of damages for breach of contract of sale is the difference in the market and contract price at the time of the breach of the contract, and not before the time of the breach." The "breach of contract" referred to was evidently the failure of the seller to deliver the goods at the time and place agreed upon. The general rule in such cases is that the purchaser's damages are to be measured by the difference between the contract price and the market price at the time and place of delivery, with interest. Bell v. Reynolds, 78 Ala. 511, 56 Am. Rep. 52. And so the court in effect charged the jury at the request of defendant. In 35 Cyc. 637, the rule is thus stated: "The market price should be taken as of the time of the breach of the contract, and not within a reasonable time thereafter, provided there is a market price at such time. * * * If the time of delivery has been extended, the market price will be taken as of the time to which the delivery was postponed, or, if postponed indefinitely, at a reasonable time after demanding performance."

We think the charge embodied a correct abstract proposition of law; and although, unexplained and unqualified, it may have misled the jury in their application of it to defendant's evidence and theory of the case, it cannot be treated as reversible error on that account, as has been repeatedly declared.

Defendant's additional plea numbered 7 was filed after there had been a trial of the cause on its merits, on the general issue, and on other special pleas, followed by reversal and remandment in this court, and long after the expiration of the time prescribed for pleading. It was, therefore, discretionary with the trial court to allow the plea to stand or to strike it from the file. This discretion should be liberally exercised for the promotion of right and...