Hunter v. Lauderdale Cotton Mills, 1 Div. 441

• Court: Supreme Court of Alabama
• Writing for the Court: BOULDIN, J.
• Citation: 215 Ala. 638,112 So. 215
• Parties: HUNTER v. LAUDERDALE COTTON MILLS.
• Docket Number: 1 Div. 441
• Decision Date: 31 March 1927

112 So. 215

215 Ala. 638

HUNTER
v.
LAUDERDALE COTTON MILLS.

1 Div. 441

Supreme Court of Alabama

March 31, 1927

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Action by the Lauderdale Cotton Mills against J.W. Hunter and others. From a judgment for plaintiff, the named defendant appeals. Transferred from the Court of Appeals, under Code 1923, § 7326. Affirmed.

Pillans, Cowley & Gresham, of Mobile, for appellant.

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

Statement.

The complaint contained the common count for money had and received, and a special count as follows:

"Count 5. The plaintiff claims of the defendant the sum of $978.64 for that heretofore, to wit, on September 20 1920, the defendants, together with one John H. Andrews and one Henry Brant, as administrator of the estate of Amos Brant, deceased, who is sole heir at law and distributee of Amos Brant, deceased, were the owners of the American schooner 'Three Marys,' and were then and there engaged in the business of operating the said schooner in the carriage of merchandise for hire, and upon said date received from the plaintiff, at Mobile, Ala., 76 cases of cotton piece goods, and agreed to transport the same by the said American schooner 'Three Marys' to the port of Havana, Cuba and there to deliver the same to the respective consignees named in the bills of lading issued for said shipments, the danger of the seas and fire only excepted, and plaintiff then and there paid to the owners and operators of the said vessel the aforesaid sum of $978.64 as freight for the services to be performed in so transporting said goods from Mobile, Ala to Havana, Cuba, but while en route from Mobile to Havanna on said voyage, the said vessel was wrecked by storms and rendered unable to complete the said voyage, and was brought back to Mobile with said goods on board, and the said owners and operators of the said vessel then and there abandoned any further effort to deliver plaintiff's said goods to Havana as agreed, and ceased to operate the said vessel, yet, notwithstanding their failure to perform the aforesaid contract to deliver the said goods in Havana as aforesaid, they have failed and refused to pay, and still fail and refuse to pay to the plaintiff, the aforesaid sum paid by the plaintiff to them as freight and compensation for the performance of the said agreement, which, in fact, never

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