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

• Decision Date: 15 November 1910
• Citation: 169 Ala. 548,53 So. 803
• Parties: GEORGE F. CRAIG & CO. v. PIERSON LUMBER CO.
• Court: Alabama Supreme Court

53 So. 803

169 Ala. 548

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

Supreme Court of Alabama

November 15, 1910

Rehearing Denied Dec. 22, 1910.

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

Action by the Pierson Lumber Company against George F. Craig & Co. for the purchase price of lumber. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

The defense interposed was that the plaintiff failed to deliver a large part of the lumber it contracted to deliver, and that it was necessary for the appellants from time to time to go into the market and buy as reasonably as possible such lumber as the appellee failed to deliver; that the lumber was higher on the market for the same grade than the contract price; and appellants seek to recoup their damages thus sustained. The third replication, referred to, alleges that a new contract was made for defendants by one Crossland, but fails to allege that Crossland had the authority to bind the defendants in that respect, or that in making such contract he was acting within the line or scope of his powers or duties as a servant or agent of the defendants, with the further allegation that the contract was made by the defendants. The facts as to the misconduct of the juror sufficiently appear in the opinion of the court.

The charge referred to as given for the plaintiff is as follows "(6) I charge you, gentlemen of the jury, if you believe from the evidence that the defendants extended the time of plaintiff's performance of 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 defendants purchased no lumber to take the place of that plaintiff 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." The other charges are of like tenor and effect.

McAlpine & Robinson, for appellants.

Inge &amp Armbrecht, for appellee.

DOWDELL C.J.

The first assignment of error is not insisted on, but is expressly waived in brief of counsel for appellants.

The second assignment is as follows: "The court erred in overruling defendant's demurrers to amended replication filed June 14, 1907. Record, pages 21, 22." There were several amended replications, and separate demurrers to each. That the second assignment of error does not comply with rule 1 of Supreme Court practice (20 South. iv), and is too general to merit consideration at our hands, we need only cite the following authorities to show: Ashford et al. v. Ashford et al., 136 Ala. 640, 34 So. 10, 96 Am. St. Rep. 82; Williams v. Coosa Man. Co., 138 Ala. 673, 33 So. 1015; National Fertilizer Co. v. Holland, 107 Ala. 417, 18 So. 170, 54 Am. St. Rep. 101; H. B. Claflin Co. v. Rodenberg, 101 Ala.

218, 13 So. 272.

Moreover, if any one of the replications was good as against the demurrer directed to it, a reversal will not be had, where the assignment of error, as here, is general, even if it should be determined that the demurrers to some of the replications were well taken. Western Ry. of Ala. v. Arnett, 137 Ala. 425, 34 So. 997; Ala. Gt. So. R. Co. v. Clarke, 145 Ala. 466, 39 So. 816.

The only ground of demurrer to the third amended replication, insisted on in argument and brief of counsel for appellant, is that the replication fails to aver the agent's authority to make the alleged contract. The replication avers that the contract was made by the defendant. The ground of demurrer insisted on was, therefore, not well taken.

The main question in this case arises out of the action of the trial court in denying the motion for a new trial. The principal ground of the motion was the alleged improper conduct of J. O. Acree, one of the parties to the suit. It was not denied on the hearing of the motion that after the evidence in the case was concluded, and the court had recessed for dinner, before hearing the argument, Acree invited one of the jurors trying the case to dine with him at a certain hotel, which invitation was accepted, and that Acree paid for the juror's dinner. "Misconduct or irregularity on the part of the jurors, if not...