Gulf States Creosoting Co. v. Jones

• Decision Date: 20 March 1941
• Docket Number: 6 Div. 816.
• Citation: 1 So.2d 379,241 Ala. 9
• Parties: GULF STATES CREOSOTING CO. v. JONES.
• Court: Alabama Supreme Court

1 So.2d 379

241 Ala. 9

GULF STATES CREOSOTING CO. v. JONES.

6 Div. 816.

Supreme Court of Alabama

March 20, 1941

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Count H of the complaint is as follows:

"Count 'H'. Plaintiff claims of the defendant the further and additional sum of Two Hundred Forty-three & 70/100 Dollars, as damages for this, that on to-wit: November 9th 1937, the defendant executed and delivered to the plaintiff the following instrument in writing:

" 'Birmingham, Alabama

" 'P. O. Box 97,

" 'Fairview Station,

" 'November 9th, 1937

" 'Mr. Jerome Jones,

" 'Hollins, Alabama.

" 'Dear Sir: We have yours of the 6th and are pleased to offer you the following:

F. O B. Cars.

Oak Gum Pine.

6" x 8""8' 6" .50 cents .40 cents .40 cents

7" x 8""8' 6" .60 cents .50 cents .50 cents

7" x 9" (?) 8 ft.

6" .70 cents .60 cents .60 cents

"'Oak Square edge and sound mixed oak cross ties, free from rot and other injurious worm holes and other injurious defects. No water oak accepted.

"'Gum: Square edge and so ud Black, Tupelo gum ties, free from rot and other injurious defects, no red gum accepted.

"'Pine Square edge and sound dense Pine cross ties; no know over 1/4th the face or adge.

"'While we will take your white sweet gum ties they must be loaded within two or three weeks after cutting and kept well off the ground as we can not take your gum ties after they have started to blue.

"'Very truly yours

"'Gulf States Creosoting Company

"'A. P. Brumfield, Buyer.

"'A P. Brumfield,'

G. "And plaintiff avers that subsequent to the date of the above instrument, and prior to December 10th, 1937, plaintiff relying upon above instrument, order, contract or agreement of the defendant, undertook to cut or manufacture cross ties for the defendant, and did cut or manufacture, for the defendant, under said order, contract or agreement, the following described cross ties, to-wit:

121 White Sweet Gum 7' X 9" - 8" 6';

156 Black and Tupelo Gum 7' X 9' - 8" 6';

36 White Sweet Gum 7' X 8' - 8" 6';

51 Black & Tupelo Gum 7' X 8' - 8" 6';

41 White Sweet Gum 6' X 8' - 8" 6';

44 Black and Tupelo Gum 6' X 8' - 8" 6'

"And plaintiff avers that on, to-wit: December 10th, 1937, he notified the defendant that said ties were cut and ready for loading and to give plaintiff instructions or shipping instructions of this in substance, and plaintiff avers that on, to-wit; December 21st, 1937, the defendant advised the plaintiff, in substance, to have car placed for loading, on to-wit: January 1st, 1938, and that defendant's inspector would arrive on train on that date and inspect the cross ties.

"Plaintiff avers, acting under the instructions of the defendant, he had placed at Hollins, Alabama, point on the railroad where the said cross ties were stacked according to contract or agreement of the defendant and ready for loading by the plaintiff, a car for shipping said cross ties.

"And plaintiff further avers that on towit: January 1st, 1938, defendant's inspector did arrive and turned down or refused to accept above described cross ties, making little or no inspection of the said cross ties. Plaintiff avers that said cross ties were cut or manufactured and stacked according to the specifications and terms of said order, contract or agreement of the defendant set out above.

"Plaintiff avers the defendant breached, or has breached, its order, contract or agreement, set out above, with the plaintiff, in this it failed or refused to accept or receive the above described cross ties and to pay for them as it was lawfully bound to do.

"Wherefore, plaintiff sues to recover the contracted price for said cross ties."

The following charge was given at plaintiff's request (assignment of error 5): "The court charges the jury, if you are reasonably satisfied from all the evidence in this cause that plaintiff cut or manufactured a minimum car of gum ties-namely, car weighing 24,000 pounds-of the specifications and conditions set out in contract dated on, to-wit, November 9, 1937, then you will find a verdict for the plaintiff and assess his damages at such sum as you may find he is entitled to receive according to the number and sizes of the gum cross ties the evidence reasonably satisfies you the plaintiff cut for the defendant under the contract of defendant."

The charge refused to defendant (assignment 6) is as follows "I charge you that the plaintiff, Jerome Jones, was under a duty to sell the logs or cross ties refused by the defendant and the measure of damages in this case is the difference between the price quoted by the defendant to the plaintiff and the price which the plaintiff could have...