Hamilton v. O'Rear

• Decision Date: 31 March 1932
• Docket Number: 6 Div. 878.
• Parties: HAMILTON v. O'REAR.
• Court: Alabama Supreme Court

141 So. 565

224 Ala. 625

HAMILTON v. O'REAR.

6 Div. 878.

Supreme Court of Alabama

March 31, 1932

Rehearing Denied May 19, 1932.

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Action by Ed. A. O'Rear against S. Hamilton. From a judgment for plaintiff, defendant appeals.

Affirmed.

R. A Cooner and J. B. Powell, both of Jasper, for appellant.

Davis &amp Curtis, of Jasper, for appellee.

GARDNER J.

Plaintiff's case is based upon the theory that he sold and delivered to defendant his merchandise stock at the cost price thereof for which defendant refused to pay, though he accepted and made use of the same. Defendant insists that he made no such purchase, but had merely told one De Mooney that he would advance the money to him for the purchase of the goods if given proper security, and, as De Mooney was unable to give the security, defendant had no further interest in the matter.

The case was by plaintiff presented in several common counts, and special count 9, and it is insisted the demurrer to count 9 was improperly overruled under the authorities of S.-S. S. & I. Co. v. Payne, 192 Ala. 69, 68 So. 359; Barney Coal Co. v. Davis, 1 Ala. App. 595, 55 So. 1023.

We think the cited cases are distinguishable, as in the instant case the complaint shows a sale of the goods and a completed delivery to the purchaser, and his acceptance thereof. Nothing being agreed as to time of payment, presumably the sale was for cash. Miller Bros. v. Direct Lbr. Co., 207 Ala. 338, 92 So. 473; 55 Corpus Juris 513, 514. Of course the fixation of the price is an essential element, but it need not be definitely fixed at the time the contract is entered into if the agreement contains express or implied provisions by which it may be made certain. 55 Corpus Juris 68, 227; S. C. Cotton Growers' Co-op. Ass'n v. Weil, 220 Ala. 568, 126 So. 637. Here there was such agreement, it was to be at the "cost price," which we think as here applied means the cost to the seller at wholesale; the original cost price. 55 Corpus Juris 227. "When employed in a contract of sale of a retail stock of goods and merchandise, the term 'invoice price' ordinarily means the wholesale cost or price at the time the goods were purchased by the seller." 55 Corpus Juris 228. The complaint disclosing a valid sale of the goods to defendant, their delivery and acceptance by him, the purchase price agreed upon, and the amount thereon which defendant refused to pay, sufficiently states the cause of action for a breach, and we conclude there was no error in overruling the demurrer thereto.

But this aside, we think the verdict may be referred to the common counts. According to plaintiff's proof, the goods were delivered and accepted, and nothing remained to be done except the payment of the purchase price. The parties were not, as argued by defendant, to yet agree upon the price. They had agreed upon that element of the contract as to the cost price of the goods; a matter of ascertainment and calculation. Certainly defendant could not, by disputing with plaintiff the cost price, relieve himself of all liability to pay for goods he had accepted and used. So, in any event, plaintiff would have been entitled to recover the reasonable value of the goods so delivered, and his evidence as to such value sustained, without conflict, the verdict rendered. Carrico & Son v. J. E. Duval Printing Co., 219 Ala. 65, 121 So. 59; Kellar v. Jones & Weeden, 196 Ala. 417, 72 So. 89; Barnes v. Marshall, 193 Ala. 94, 69 So. 436; Catts v. Phillips, 217 Ala. 488, 117 So. 34.

Plaintiff's evidence tended to show that defendant, upon agreeing to purchase, also agreed to send his son Lee and De Mooney to take the invoice, which they did the following day in company with plaintiff. In making inventory of the stock, there was an original which the son Lee carried back with him, which he says has been misplaced, and a copy kept by plaintiff. At the time some of the bills or invoices were present and available and the cost price placed opposite the goods, but others were not, and plaintiff afterwards (some six weeks) added the cost price obtained from invoices at his house and others from a local wholesale house, but the greater part from invoices. The goods in the store were of staple character, and the cost price as fixed on the inventory is not questioned. In the absence of his bills or invoices, we see no objection to plaintiff obtaining the actual wholesale price, as certainly it was not intended the loss of a few bills or invoices would preclude a recovery under the terms of the contract; and, in the absence of any attack upon the same, no reason appears why the amounts so designated should not be accepted as correct. Defendant did not question the amount or the inventory, but when plaintiff with his father, who made the trade for him, went to...