Lawrenceburg Roller Mills Co. v. Chas. A. Jones & Co.

Decision Date05 February 1920
Docket Number6 Div. 998
PartiesLAWRENCEBURG ROLLER MILLS CO. v. CHAS. A. JONES & CO.
CourtAlabama Supreme Court

Appeal from Circuit Court, Jefferson County; C.W. Ferguson, Judge.

Assumpsit by the Lawrenceburg Roller Mills Company against Charles A Jones & Company. Judgment for the defendant, and plaintiff appeals. Affirmed.

London Yancey & Brower, of Birmingham, for appellant.

Miller & Graham, of Birmingham, for appellee.

THOMAS J.

The action by plaintiff was on account stated: For goods, wares and merchandise sold to defendant, counts 1 and 2; for damages for the breach of contracts of sale of 1,500 and 1,000 barrels of flour, respectively, subject to purchaser's orders, setting out the contracts in the respective counts, 3 and 4 as amended. The contracts set out were in like form, of dates August 6 and 8, 1917, calling for 1,500 barrels of flour in the one and for 1,000 barrels of flour in the other, providing that shipments be made on purchaser's orders during August and September, and that failing to order the same, vendor was given the right to cancel the contract or unshipped portion thereof, and to collect on unshipped portion the difference between the market value of the flour at date of sale and date of termination of the contract. The alleged contract of date August 8, 1917, was not signed by the defendant, but had written at the place for signature of buyer the words, "Attached wire confirming."

Defendant filed pleas of the general issue and special pleas 3 to 8, inclusive, to which demurrer was overruled. The special pleas set up the Food Control Act of Congress and orders made thereunder, providing for the fixing and controlling of the price of flour while this nation was at war.

Special plea 3 stated, in substance, that at the time of the making of the written contract sued on, it was agreed and understood as a part of the contract that, if Congress or the government made any regulations for the purpose of fixing or controlling the price of flour, or the amount or quantity of flour which a dealer might have on hand, then, in that event, the contract was to be terminated, and that on August 10, 1917, Congress passed the Food Control Act, and on August 24, 1917, Herbert Hoover, as Food Administrator, promulgated an order that no miller should make or have outstanding at any time contracts for flour, except those that required shipments within 30 days after date thereof, and that no miller should deliver products knowing that such delivery would supply the purchaser with an amount in excess of his requirements, and the contract was thereby abrogated.

For plea 4 defendant adopted all of plea 3, with the exception of the last paragraph, and added an averment that the contract in question did not require shipment of flour within 30 days.

For plea 5 defendant adopted all of plea 3 down to the last paragraph thereof, and in addition the averment that, had plaintiff shipped the flour contracted for, it would have done so, knowing that defendant would have thereby had on hand flour in excess of his requirements for 30 days.

For plea 6 defendant avers that one of the terms of the contract sued on was that the contract was subject to government food control regulations, and avers that on August 10, 1917, Congress passed an act regulating and controlling the distribution of flour, and fixing the price of wheat, and providing for administration agents to be appointed by the President; that the President appointed Mr. Hoover, who on, to wit, August 24, 1917, promulgated a regulation, in substance, that no miller should make a delivery or supply flour to any person in excess of his requirements for his business during a reasonable time thereafter, to wit, 30 days, and avers that the contract in question did not require delivery of flour within 30 days.

Pleas 7 and 8 were substantially like plea 6, with the added averment that had shipment been made defendant would have had on hand a supply of flour in excess of his requirements during the next 30 days.

When the bill of exceptions sets out "substantially all the evidence," if it is shown that on the issues made by the complaint and the general issue pleaded defendant was entitled to the general affirmative charge given at its request, in that plaintiff was not entitled to recover, though there may have been error in rulings on demurrer to special pleas, the same was without prejudice, and reversal will not be had. Conn v. Sellers, 198 Ala. 606, 73 So. 961, 962; Hill v. McBryde, 125 Ala. 542, 543, 28 So. 85; Andrews Mfg. Co. v. Porter, 112 Ala. 381, 385, 20 So. 475; Waldman v. N.B. & M. Ins. Co., 91 Ala. 170, 175, 8 So. 666, 24 Am.St.Rep. 883; 1 Michie's Ala.Dig. 559, § 1029, where the Alabama cases are collected.

In actions on contracts, as in other civil actions, the allegata et probata must correspond, for a party may not declare for one cause of action and recover upon another. Iron Age Pub. Co. v. Western Union Tel. Co., 83 Ala. 498, 503, 3 So. 449, 3 Am.St.Rep. 758; Derrick v. Monette, 73 Ala. 75; U.S.H. & A. Ins. Co. v. Savage, 185 Ala. 232, 235, 64 So. 340; Green v. Southern States Lbr. Co., 163 Ala. 511, 514, 50 So. 917; U.S.H. & A. Co. v. Veitch, 161 Ala. 630, 50 So. 95; Wellman v. Jones, 124 Ala. 580, 589, 27 So. 416; Williams v. McKissack, 125 Ala. 544, 547, 27 So. 922; M., J. & K.C.R.R. Co. v. Bay Shore Lumber Co., 158 Ala. 622, 626, 48 So. 377; Corona Coal & Iron Co. v. Bryan, 171 Ala. 86, 54 So. 522, Ann.Cas.1913A, 878; B.R., L. & P. Co. v. Lide, 177 Ala. 400, 404, 58 So. 990; 1 Greenl. on Ev. § 60; Andrews, Stephen on Pl. p. 333. The announcement in Berthold & Jennings Lumber Co. v. Geo. W. Phalin Lbr. Co., 196 Ala. 362, 71 So. 989, is not to the contrary. There the ruling was of the exercise of a discretion in granting or refusing a continuance because of surprise for a slight variance in the proof from the bill of particulars furnished on demand under the statute. No question is here presented of a declaration as to the time under a videlicet, as was the question in Pollack v. Gunter & Gunter, 162 Ala. 317, 50 So. 155.

Was the defendant entitled to the general affirmative charge on the facts? The alleged contract, declared upon in count 3 as amended, was of date August 6, 1917, for the purchase by defendant of plaintiff of 1,500 barrels of flour at $12 per barrel; "time of contract shipment: Aug. Sept. Delivered: Birmingham, Ala. Terms: Sight, or sight on arrival, draft with bill of lading attached. Millers' National Federation package differentials govern. Quantity, 1,500 bbls.; brand, Town Talk; pkg., cotton; price, $12.00. Buyer accepts this contract for shipment within Aug. Sept. and assumes all risk or modification due to government regulation:" Provided that it should not become effective unless "signed by the seller at its Lawrenceburg or Boston office, or confirmed in writing by it at said Lawrenceburg or Boston office. No verbal condition or modifications can alter this contract."

It was further averred that such contract was duly confirmed in writing by plaintiff at its Lawrenceburg office. The proof as to such confirmation was a letter written by plaintiff to defendant, dated August 8, 1917, containing, among other matter, the statement that--

"We confirm contract with you under date of the 6th inst. *** for August-September shipment, our option subject to any government food control regulations, 1,500 barrels of 'Town Talk' flour, in car lots, at price $12 per barrel cotton basis delivered Birmingham. Usual sight draft terms."

Was this a confirmation of the original order, or did it embody different and material provisions? We are of opinion that it was a material modification thereof, to the extent that shipments were to be made in August and September at "our [seller's] option." The original contract contained no such reservation for the seller's benefit, but the right of direction of shipment for delivery at Birmingham during said month was with the buyer; that is to say, the letter did not accept or confirm the order on the terms that the "buyer accepts this contract for shipment within August and September and assumes all risk of modification due to government regulation," but that shipments ordered during August-September were at seller's "option" and "subject to any government food control regulations." This was not an unqualified acceptance in writing of the original written order as required by its terms; it was a new offer by plaintiff to sell flour to defendant on different terms indicated. Defendant's acceptance of the contract, so extended or modified, is not shown by the evidence. To the contrary, it is shown that defendant insisted that he had no such contract of purchase with plaintiff, and was not bound thereby. The time of shipments, whether they were to be made only at the direction of the purchaser, or whether at the discretion or convenience of the seller, were important and material provisions of the contract. Home Guano Co. v. International Agri. Corp., 85 So. 713; Dowling-Martin Groc. Co. v. J.C. Lysle Mill. Co., 83 So. 486; Scruggs & Echols v. Riddle, 171 Ala. 350, 361, 362, 54 So. 641. When the alleged confirmatory letter was offered in evidence, due objection was made by defendant, and the variance between allegata and probata was called to the attention of the court. There was error in admitting in evidence said letter of confirmation of the original contract as required by its terms.

The contract declared upon in amended count 4 is of like purport as that on which count 3 is rested, with the exception that it was only executed by plaintiff (not by defendant) and indorsed, "Attached wire confirming," before the word "buyer." The record does not show that such ...

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