Holmes v. Bloch
| Decision Date | 20 April 1916 |
| Docket Number | 3 Div. 237 |
| Parties | HOLMES v. BLOCH. |
| Court | Alabama Supreme Court |
Appeal from City Court of Montgomery; C.P. McIntyre, Judge.
Action by B.K. Bloch, doing business as the Empire Distillery Company, against Lee Holmes. From a judgment for plaintiff defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. Reversed and remanded.
Rushton Williams & Crenshaw, of Montgomery, for appellant.
Ball & Samford, of Montgomery, for appellee.
This is an action to recover the purchase price of five barrels of whisky. Four counts declare each on promissory notes made by defendant, payable to plaintiff, for the aggregate price of the whisky. There is no dispute that the notes were given as for the purchase price of the whisky, nor that they were delivered to plaintiff's agent and salesman. The defense set up is that there was only an agreement to sell, made by and between the defendant and the plaintiff's agent or salesman, which agreement was by its very terms subject to the ratification or rejection of the plaintiff, the contemplated seller; and that the defendant revoked the order for the whisky and declined to purchase, before the agreement was ever ratified or rejected by the plaintiff, and that consequently, in fact and in law, there was no sale--that the contract to sell was not consummated.
It appears without dispute that there was never any delivery in fact of the whisky, but only an offer to deliver, and a declination by the defendant to accept, or receive.
The contention of plaintiff is that the order of purchase, and to ship, was not countermanded until after the agreement by its agent to sell had been ratified, and until it had offered to ship, and that the sale was therefore consummated, and that the defendant was therefore liable as if he had accepted and received the goods.
The evidence of defendant tended to show that he did make an agreement with plaintiff's agent to purchase, and did order the whisky to be shipped him, and did execute the notes sued on, as for the purchase price; but that on the same day, and within less than an hour, he wrote a letter properly addressed to the plaintiff, with the proper postage affixed, and mailed it promptly; that by this letter he countermanded the order and directed plaintiff not to ship the goods. There was also evidence tending to show that the order for the whisky, and contract to purchase, was mailed at the same time--that is, on the same day--at the same place, viz., Montgomery, Ala.; and that the order and defendant's letter containing the countermand were each addressed to the plaintiff at 200 Fifth avenue, New York City, state of New York.
It was certainly open for the jury to infer, from all the evidence offered, that both the order for the whisky which was subject to the approval or rejection of the plaintiff, and the alleged letter countermanding the order, left Montgomery, Ala., or were mailed in Montgomery, addressed to the same party at the same destination, on the same day, and within a half hour of the same time.
The question of law involved is whether or not the jury could infer that the plaintiff received the countermanding order, before the acceptance of the order. There is no direct and specific proof of this fact; and, in fact, the plaintiff denies so receiving the countermanding order, before acceptance.
The trial court evidently ruled that the evidence was conclusive of this question, or that there was no just inference for the jury to draw that the countermanding order was received by plaintiff before the acceptance of the order. We conclude this, from the fact that the trial court gave the affirmative charge for the plaintiff.
The order or contract of purchase was unquestionably conditional. It was as follows:
Kramer testifies that he sent this order and these notes to plaintiff at New York by mail, and must have sent them after they were signed. The defendant, after testifying to having signed the order and notes, and to the agent's leaving his office, further testified in part as follows:
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