Hoffman v. Moreman & Webb

• Decision Date: 04 December 1913
• Parties: HOFFMAN v. MOREMAN & WEBB.
• Court: Alabama Supreme Court

63 So. 942

184 Ala. 220

HOFFMAN v. MOREMAN & WEBB.

Supreme Court of Alabama

December 4, 1913

Appeal from Law and Equity Court, Lee County; Lum Duke, Judge.

Action by Moreman & Webb against Walter Hoffman, in assumpsit. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

The first and second counts are on the common count.

Count 3 is as follows: "Plaintiff claims of defendant the sum of $243, for that on, to wit, the 13th day of August, 1910 defendant entered a certain contract with plaintiff at Waverly, Ala., which was in writing, under the terms of which said contract the said defendant agreed to exchange 33 tons of sound, dry cotton seed f.o.b. cars Waverly, Ala., for 30 tons of cotton seed meal to run 7 1/2 per cent. f.o.b. cars Columbus, Ga., the seed and meal to be delivered on or before January 1, 1911. Plaintiff avers that it complied with its part of said contract, and delivered said meal to defendant on, to wit, the 1st day of January, 1911, the basis of said meal being delivered 7 1/2 per cent., and that it was delivered to said Walter Hoffman at Waverly, Ala., and was accepted by said Hoffman; and said defendant thereupon requested that plaintiff take said meal off of his defendant's, hands, which plaintiff did, and that defendant agreed to pay plaintiff the difference between the price of 30 tons of cotton seed meal and 33 tons of sound dry cotton seed, on January 1, 1911, and the difference in the market value of the 30 tons of meal and 33 tons of cotton seed, at Waverly, Ala., was $243, and plaintiff avers that said defendant has failed and refused to comply with his agreement to pay plaintiff said amount."

The demurrers to the third count were as follows: "(3) It fails to show any consideration for defendant's alleged promise. (4) It shows the alleged promise of defendant to have been made without consideration."

R.C Smith and A.E. Barnett, both of Opelika, for appellant.

Barnes & Denson, of Opelika, for appellees.

SOMERVILLE J.

If the oral agreement, under which plaintiffs agreed to receive back from defendant the 30 tons of meal which had become defendant's property by delivery to him under the written contract, was intended as a novation in discharge of the obligations growing out of the written contract, then this was a sufficient consideration for the new oral agreement for the breach of which plaintiffs declare in the third count of the...