Lauderdale County Co-op v. Lansdell

• Decision Date: 15 September 1955
• Docket Number: 8 Div. 794
• Parties: LAUDERDALE COUNTY COOPERATIVE, Inc. v. M. R. LANSDELL et al.
• Court: Alabama Supreme Court

Page 201

83 So.2d 201

263 Ala. 557

LAUDERDALE COUNTY COOPERATIVE, Inc. v. M. R. LANSDELL et al.

8 Div. 794.

Supreme Court of Alabama.

Sept. 15, 1955.

Rehearing Denied Nov. 10, 1955.

Amended Count 1 of the complaint is as follows:

'Plaintiffs claim of defendant the sum of Twelve Hundred Fifty (1250.00) Dollars as damages for that the defendant is now, and was during the month of November, 1947, and in the interim, engaged in the business of a public warehouse, and storing, handling, and caring for cotton for a reward, and on, to-wit, the 5th of November, 1947, the plaintiffs stored with defendant at its warehouse in Florence, Alabama, 26 bales of cotton, all of which the defendant agreed to keep for the plaintiff and to exercise ordinary care and diligence in the care of the same; and plaintiffs paid to defendant the charges required and demanded of them for such services.

'And plaintiffs aver that on to-wit, February 13, 1948, while the said cotton was stored in the warehouse of defendant, the said cotton was materially damaged by water and plaintiffs made demand on defendant for the settlement of its liability because of such damage; and thereafter in settlement and discharge of said claim of plaintiffs, the parties by compromise agreed as follows, to-wit:

'That defendant would dry the cotton of plaintiffs and pay for the irreparably damaged portion of the same and return to plaintiffs the less damaged portion dried and in as good or better condition than said cotton was before the said water damage, and of market value equal or better than before damage.

'Thereafter, defendant did dry the said cotton and did pay plaintiffs for the irreparably damaged portion of the same and did return the plaintiffs the balance of the same; but defendants failed to comply with and did breach the said contract of compromise in this, to-wit:

'That said cotton was re-packed and not in as good condition as it was before the said water damage and had a less market value than it had prior to said water damage; all to plaintiffs' injury and damage in the sum aforesaid.

'For which plaintiffs sue.'

Bradshaw, Barnett & Haltom, Florence, for appellant.

Mitchell & Poellnitz, Florence, for appellees.

PER CURIAM.

This is an appeal by defendant from a judgment rendered in favor of plaintiffs for a breach of contract. See opinion on former appeal--260 Ala. 452, 71 So.2d 70.

After the cause was remanded, it was tried at law with a jury resulting as indicated above. It was tried on two counts. They are both of the same import. Count 1 as amended will be set out in the statement of facts. It will be observed that it alleges that plaintiffs stored cotton in defendant's warehouse. The cotton was materially damaged by water, and plaintiffs made demand upon defendant for settlement of its liability to plaintiffs because of such damage, and, in settlement and discharge of such claim and by way of compromise, the defendant agreed that 'it would dry the cotton of plaintiffs and pay for the irreparably damaged portion of the same and return to plaintiffs the loss damaged portion dried and in a good or better condition than said cotton was before said water damage, and of market value equal or better than before damage'.

The question which seems to be most argued by counsel on appeal is whether there was a sufficient consideration alleged for the contract, or shown by the evidence. There was first a demurrer to the complaint claiming that the complaint showing a verbal contract, or one not alleged to be in writing, must show that existence of a sufficient consideration; and that it is insufficient in that respect. The court overruled the demurrer. The defendant then filed pleas. Plea 1 was the general issue and plea 2 was that there was no consideration for the contract alleged in the complant. Plaintiffs demurred to these and other pleas. The demurrer to pleas 1 and 2 was overruled, and sustained as to the other pleas. After the evidence was taken, at the written request of plaintiffs, the court charged the jury that if they believe the evidence they cannot return a verdict for defendant based on its plea No. 2. So that the question is properly presented and very earnestly and ably argued. This question was also indirectly involved on the former appeal and there argued; but was there considered only on the question of whether the issues were available at law or whether there was equity involved. We thought there was a sufficient showing for a consideration, and so stated on that appeal. That view is challenged and the question again argued on this appeal.

The Pleading.

The theory of appellant's argument is largely based on what was said in respect to the question presented in Daniel v. Hughes, 196 Ala. 368, 72 So. 23, 24. In that case it was shown to be settled that the existence of a mere controversy will not suffice to support an agreement to settle. And that "'The surrender of a mere assertion of claim, or the withdrawal of a threat to sue, when the claim is without legal merit, whether its legal validity is known or not, will not uphold a release, or agreement of compromise.' [And] 'When a claim is absolutely and clearly unsustainable, at law or in equity, its compromise constitutes no sufficient legal consideration."' The complaint there, to which the demurrer was sustained, was patently insufficient in that respect.

The same thought, variously expressed, is given effect in many of our cases, as that there must be a bona fide claim based on colorable right, such as conflicting or indeterminate testimony from which inferences are to be drawn, Ex parte Southern Cotton Oil Co., 207 Ala. 704, 93 So. 662; or that the result of a proceeding on the claim is doubtful, Russell v. Wright, 98 Ala. 652, 13 So. 594; Ernst Bros. v. Hollis, 86 Ala. 511, 6 So. 85; or there is some reasonable ground for controversy. Burleson v. Mays, 189 Ala. 107, 111, 66 So. 36.

The allegations of the complaint show the existence of a material matter in dispute, and that it was settled by the agreement alleged to have been made by defendant. That sufficiently pleads the existence of a consideration. Ex parte Southern Cotton Oil Co., supra (2). That was put in issue by the plea of the general issue and by special plea 2. If the claim for damages set up in the complaint was fictitious, without any basis, not in good faith, not even of a doubtful nature, and not so appearing on its face, the burden was upon defendant in that respect. Hartford Fire Ins. Co. v. Clark, 258 Ala. 141(3), 61 So.2d 19.

General Charge.

The court gave the general charge for plaintiffs on the issue as to a consideration for the alleged contract.

It is undisputed that plaintiffs had twenty-six bales of cotton in defendant's warehouse; that on February 13, 1948, while said cotton was thus stored, it was materially damaged by flood waters flowing into the warehouse, caused by an overflow of the river. If in fact the contract as alleged in the complaint was made, which is disputed, it was in settlement of that damage. Was that a claim made in good faith and of a doubtful sort? The law applicable to a warehouseman's duty is set forth in section 526, Title 2, Code, which requires of him an exercise of reasonable and ordinary care to protect the property stored from damage (as from the elements), and makes him liable for any loss or injury to the goods which could have been avoided by the exercise of such care. This is no more than the duty which obtains without the statute. Bethea-Starr Packing & Shipping Co. v. Mayben, 192 Ala. 542, 68 So. 814; Seals v. Edmondson, 71 Ala. 509; 56 Am.Jur. 384, section 136.

This damage to the bailed property having been caused by the violence of nature, there is no presumption of negligence on the part of the defendant-bailee, and on the trial of a suit against him the burden to produce some evidence of his negligence would be upon the plaintiffs. Seals v....