Green & Sons v. Lineville Drug Co.

• Decision Date: 02 March 1907
• Parties: ROBERT M. GREEN & SONS ET AL. v. LINEVILLE DRUG CO.
• Court: Alabama Supreme Court

43 So. 216

150 Ala. 112

ROBERT M. GREEN & SONS ET AL. v. LINEVILLE DRUG CO.

Supreme Court of Alabama

March 2, 1907

Appeal from Circuit Court, Clay County; John Pelham, Judge.

Action by Robert M. Green & Sons and others against the Lineville Drug Company. From a judgment in favor of defendant plaintiffs appeal. Reversed and remanded.

Action for damages for breach of contract. The contract is set out in the opinion, and is a part of the complaint in each instance. The breach alleged is a refusal of the defendant to accept the goods shipped under the contract. Demurrers were interposed to the complaint, and sustained, whereupon the complaint was amended to meet the defects pointed out by the demurrers, and defendant filed the following pleas:

"(2) That plaintiff failed to comply with the terms of said contract, and himself breached said contract, in this: That he did not ship and deliver the alleged articles as called for by said contract, but failed or refused to do so though the defendant was ready and willing at all times to comply with the terms of said contract.

"(3) By the terms of said contract plaintiff agreed to ship at once, by payment of $130 on delivery of goods at Lineville Ala., but, notwithstanding these terms, plaintiff did not ship said apparatus until after, to wit, seventeen days, and failed and refused to deliver said goods at the stipulated price, $130, on arrival of goods at Lineville, but, on the contrary, shipped them to Oxford, Alabama, with bill of lading attached, so that defendant could not get possession of same without paying the stipulated price, $130, in Oxford, Ala., though the said plaintiff well knew that said payment was not to be made under the contract until arrival of goods at Lineville, and plaintiff never fulfilled this part of the contract, but refused to comply with same requiring payment at Oxford before goods reached Lineville, and by this breach of the contract, plaintiff prevented the defendant from getting the apparatus according to contract."

"(5) Defendant, for further plea, said that plaintiff knew at the time of contract that defendant bought the apparatus for use in connection with its drug business, and it further avers that the said plaintiff refused to comply with the contract, in that they failed to ship apparatus according to the terms of contract, and refused to let defendant have the same unless on payment of $130, made in Oxford, Ala., before goods were allowed to be taken from the railroad station there, when plaintiff well knew that payment of said money was not due until arrival of goods at Lineville; that by this failure of plaintiff to comply with the contract, defendant sustained the following damages, to wit: [Here follows an itemized statement.] All of which were lost to defendant by plaintiff's failure to perform the contract, and he here offers to recoup said damages against the alleged demand of the plaintiff and asks damages for the excess."

"(7) Defendant, for further plea and answer to said complaint, says that the selling agent of said plaintiff represented to defendant that he could and would have the said apparatus shipped out at once, and that plaintiff would have same delivered in 10 days; and defendant further says that, relying upon these statements, he signed said contract, and that the said agent, by making said statements, which were not true, induced defendant to sign the contract, which he would not otherwise have done."

Demurrers were filed to these pleas as follows: "To all the pleas separately, because said pleas are not answered to plaintiff's complaint. (2) Because the matters set up therein improperly invade the province of the jury. (3) Because they tender an immaterial issue. (4) Because they contain matters which seek to vary, add to, or contradict the written contract upon which plaintiff sues. (5) They are the conclusion of the pleader. (6) They seek to construe the...