Hunter v. Lauderdale Cotton Mills

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

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 performed, wherefore plaintiff sues and claims of the defendants the aforesaid sum of $978.64, together with the interest thereon."

A special plea, pro tanto, was interposed as follows:

"(10) And for plea and answer to the plaintiff's complaint and separately and severally to each count thereof pro tanto, the said defendants J.W. Hunter, Estelle P. Kirkbride, Robin Herndon, and W.L. Whiting say that in no event can the total liability for return of prepaid freight exceed in the aggregate the sum of $702.48; for that at the time of making of the freight engagement in the said complaint mentioned, the said schooner 'Three Marys' was already under charter, for her entire carrying space, to the McGowin Lumber & Export Company; and, in order to take plaintiff's goods, it was necessary to procure the leave and consent of the said McGowin Lumber & Export Company. And these defendants aver that in order to procure that consent it was necessary to pay, and the said named defendants did pay, unto the said McGowin Lumber & Export Company the sum of $234.16 out of the said prepaid freight so paid by plaintiff

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