H. Curjel & Co. v. Hallett Mfg. Co.

• Decision Date: 30 November 1916
• Docket Number: 1 Div. 879
• Citation: 73 So. 938,198 Ala. 609
• Court: Alabama Supreme Court
• Parties: H. CURJEL & CO. v. HALLETT MFG. CO.

73 So. 938

198 Ala. 609

H. CURJEL & CO. v. HALLETT MFG. CO.

1 Div. 879

Supreme Court of Alabama

November 30, 1916

Rehearing Denied Jan. 8, 1917

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by the Hallet Manufacturing Company against H. Curjel & Co. for breach of contract. Judgment for plaintiff, and defendant appeals. Corrected and affirmed.

Objections to questions, held properly overruled, and where improper testimony was received, defendant should move to strike.

The action was for the breach of the following contract to purchase logs from plaintiff:

"The said Hallett Manufacturing Company agrees to sell and the said H. Curjel & Co. agrees to purchase, 2,500 hickory logs ranging in diameter from 8 to 14 inches, but averaging not more than 12 inches in diameter, at the price of $42.50 per thousand superficial feet, and to be delivered and paid for as follows: The said logs shall be delivered f.a.s. Mobile, Ala., in three shipments of approximately 833 logs each, between November 1, 1913, and April 1, 1914. The said Curjel & Co. shall give four weeks' written notice of the time that each delivery is to be made, but must call for and accept the delivery of at least one-third of said logs by January 1, 1914. The said Hallett Manufacturing Company shall be entitled to four weeks' time after the making of each delivery before it can be compelled to make the next delivery. Should the said Curjel & Co. not give notice requiring the delivery of all of said logs by April 1 1914, the said Hallett Manufacturing Company shall have the right to deliver the same at any time within three days before or after April 1, 1914, and the said Curjel & Co. must accept said delivery, although they may not have requested the same. If at any time that the said Hallett Manufacturing Company is authorized to make a delivery under this contract of any of said 2,500 logs there is no vessel in port ready to receive the same the said logs shall thereafter be held and handled entirely at the expense of the said H. Curjel & Co., who must accept and pay for the same in all respects as though delivery had been made f.a.s. at Mobile. Each and every delivery of logs made pursuant to the terms hereof shall be paid for in cash as soon as the delivery is made."

To which said agreement there was subsequently added on June 2, 1913, the further provision that the said logs should measure 10 feet and upwards in length.

In the first count plaintiff alleges that although it has complied with all of the provisions of the said agreement on its part, the defendants have failed to comply with the following provisions thereof, i.e., they have failed to take and pay for any of the logs mentioned in the said contract, to the damage of plaintiff, etc.

In the second count, the breaches assigned are as follows:

And the plaintiff says that on, to wit, December 26, 1913, it notified defendants that it then had up the rivers tributary to Mobile the logs necessary to make a delivery under the aforesaid contract, and was about to send boats and barges therefor, and defendants then advised plaintiff, in substance, that they would not want any of the logs which plaintiff was so preparing to bring down, but three days thereafter, and on, to wit, December 29, 1913, defendants made written demand upon plaintiff for the delivery, within not more than four weeks of the first installment of logs under said contract. In the meantime, plaintiff, relying upon the aforesaid previous statement of defendants, had so made its arrangements for the bringing down of the said logs that they probably would not reach Mobile within four weeks, but notwithstanding the same, plaintiff hurried the bringing down of the said logs to Mobile, and on or about February 2, 1914, had them ready for delivery at Mobile, and then offered to deliver to defendants 833 logs of the kind, quality, and sizes called for by said contract, and defendants offered to accept them if plaintiff would deliver them on credit, but plaintiff declined to extend such credit to defendant and they refused to accept or pay for said logs, although defendants' only use for said logs was to export them and there had been available no means or opportunity for shipping them at any time between January 25, and February 2, 1914. And plaintiff avers that by so refusing to accept and pay for said logs, defendants breached said contract. Plaintiff further avers that by letter dated January 24, 1914, defendants asked for a delivery on February 23, 1914, of the second installment of 833 of the logs covered by said contract, and for delivery on March 23, 1914, of the third installment of similar quantity of said logs, and by letter of February 18, 1914, requested that the said February delivery be made to the steamship Asian to which plaintiff agreed. Plaintiff then had the logs necessary to such delivery on wharves and barges at Mobile, and was and continued ready, willing, and able to make said delivery, and notified defendant that delivery would be made as soon as the steamship was ready to receive the same. The said steamship was then engaged in loading at Mobile a general cargo, and plaintiff kept in touch with the agent of said steamship, who was in control of such loading, and found that said steamship would be ready for and would receive such delivery on but not before February 27, 1914, and plaintiff was able, ready, and willing to then and there make such delivery. However, on February 26, 1914, defendant notified plaintiff in writing that they considered the contract breached by plaintiff's failure to make said delivery, and expected to hold it liable for any damages which defendant might suffer thereby, and thereupon defendant refused to receive and pay for any logs under said contract, defendant taking the position that plaintiff had breached the contract, and that defendants were no longer liable thereunder. And plaintiff alleges that thereby defendant again breached their aforesaid contract.

Speaking to the contract above set out, counts 1 and 2 contained the following:

To which said agreement there was subsequently added on June 2, 1913, the further provision that said logs should measure 10 feet and upwards in length.

The general charge was requested as to each count of the complaint by defendant, and a number of other instructions, the substance of which sufficiently appear from the opinion. There was judgment for plaintiff, and defendants made motion for a new trial, which was overruled, and they appeal from both judgments.

For former report of this case, see Hallett Mfg. Co. v. Curjel & Co., 191 Ala. 372, 67 So. 995.

Harry T. Smith and William G. Caffey, both of Mobile, for appellant.

Stevens, McCorvey & McLeod, of Mobile, for appellee.

SOMERVILLE J.

Without undertaking a detailed discussion of the evidence, we think it was sufficient to justify the jury in finding: (1) That plaintiff was able, ready, and willing to deliver to defendants at the Mobile wharf on January 26, 1914, the first installment of 833 logs, and that defendants wrongfully declined (on January 24th) to receive them at any time, present or future. (2) That on or about February 2d plaintiff actually offered to make the delivery of the first installment, and defendants wrongfully refused to accept it. (3) That on February 23d plaintiff was able, ready, and willing to deliver the second installment of 833 logs to defendants' designated steamer Asian, and so notified defendants and the ship's agent; that the ship was not then ready to receive them and did not announce its readiness until several days later; that defendant was under the duty of inspecting the assembled logs and aiding plaintiff in the separation of the specified logs to be accepted before their actual delivery to the Asian alongside ship; that defendant prevented such separation by refusing or delaying the inspection; and that defendants wrongfully refused in writing, on February 26th, to accept the logs if thereafter separated and tendered to the ship, which was receiving cargo up through March 7th. (4) That on February 26th defendant definitely repudiated the entire contract by denying any further obligations thereunder. (5) That plaintiff was able, ready, and willing on March 23d to deliver to defendants the third installment of 833 logs, and that an actual tender thereof was excused by defendants' previous repudiation of the whole contract. On these findings, the pleadings being apt, the jury would have been authorized to award to plaintiff such damages as would compensate it for losses occasioned by defendants' wrongful refusal to accept the logs.

It is, however, insisted by defendants that the evidence does not support a material allegation of the first count of the complaint, viz. "that plaintiff has complied with all of the provisions of said agreement on its part"; and hence that, as to the first count, defendants were entitled to the general affirmative charge as requested.

The obligation of plaintiff to actually deliver was of course contingent upon the willingness of defendants to accept; and if acceptance was refused as to the first installment, plaintiff nevertheless fully performed its obligations to deliver by offering to deliver. So, plaintiff's obligation to deliver the logs "f.a.s."--that is, free alongside the ship--was expressly contingent upon the designation by defendants of a ship to receive, and its readiness to receive, the logs at or about a specified time and place. As to the first installment, the evidence tended to show literal compliance by plaintiff "with the provisions of the agreement," and therefore, under the first count, plaintiff could recover pro tanto, regardless of the second and third installments. ...