Kerlin-Patterson Lumber Co. v. Eufaula Hardware Co.
| Decision Date | 15 April 1926 |
| Docket Number | 4 Div. 265 |
| Parties | KERLIN-PATTERSON LUMBER CO. v. EUFAULA HARDWARE CO. |
| Court | Alabama Supreme Court |
Rehearing Denied May 20, 1926
Appeal from Circuit Court, Barbour County; J.S. Williams, Judge.
Action by the Eufaula Hardware Company against the Kerlin-Patterson Lumber Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.
See also, 211 Ala. 687, 101 So. 623.
McDowell & McDowell, of Eufaula, for appellant.
G.L Comer & Son, of Eufaula, for appellee.
This is a suit by Eufaula Hardware Company against the Kerlin-Patterson Lumber Company on the common counts, and for damages for a breach of a contract entered into by them of purchase and sale of 2,200 feet of one-inch black pipe at an agreed price of 11 cents per foot, and 1,500 feet of 1 1/4-inch black pipe at an agreed price of 16 cents per foot which plaintiff ordered for defendant by wire, and which defendant without just cause refused to accept and pay for when it arrived at Eufaula. It avers the agreed price was $482.
The cause was tried by the court without a jury. It rendered a judgment in favor of the plaintiff for $296.92, and this appeal is prosecuted by the defendant from that judgment. This is the second appeal to this court in this case. Kerlin-Patterson Lumber Co. v. Eufaula Hdw. Co., 211 Ala. 687, 101 So. 623.
The defendant contracted to purchase, and the plaintiff to sell it, 2,200 feet of black pipe, one-inch, at 11 cents per foot, and 1,500 feet of 1 1/4-inch black pipe at 16 cents per foot. The plaintiff had to order it, which it did by wire, and defendant was to pay for it when it reached Eufaula. The piping came to Eufaula as ordered under the contract, and the defendant declined to accept on August 10, 1923, and pay for it, and it remained in possession of the plaintiff at Eufaula.
The appellant in brief states on this trial:
"The only question arising and to be determined, viz. proof by the plaintiff of the difference between the market price or selling value of the pipe in question at the time and place of the default, or at the nearest available market, and the agreed contract price, so as to determine the amount of damages the plaintiff might be entitled to, if any."
The rule for ascertaining the damages, if any, in actions of this kind, was declared in Patterson v. Daniels, 205 Ala. 520, 88 So. 657, and it was quoted with approval in this case on former appeal (211 Ala. 687, 101 So. 623), and need not be repeated here.
Bullock, of plaintiff's corporation, testifying for the plaintiff, stated:
"When he [defendant] refused to take it at the price, judging from the way I kept it, it is not worth anything; I have been unable to sell it."
There was evidence tending to show there was no demand at that time at Eufaula for that quantity of black piping. The plaintiff testified, over objection of the defendant:
"That he could not have gone into the open market here and sold that pipe to anybody at the price he agreed to sell it to him [defendant]."
The court did not err in this ruling, and the defendant cannot justly complain at this answer. This witness afterwards testified the market value of this piping at Eufaula was at the time of the breach of the contract one-half of the cost price. The defendant was not injured by this...
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