Lide v. Birmingham Electric Battery Co.

• Decision Date: 01 November 1927
• Docket Number: 8 Div. 563
• Citation: 115 So. 689,22 Ala.App. 336
• Parties: LIDE v. BIRMINGHAM ELECTRIC BATTERY CO.
• Court: Alabama Court of Appeals

115 So. 689

22 Ala.App. 336

LIDE v. BIRMINGHAM ELECTRIC BATTERY CO.

8 Div. 563

Court of Appeals of Alabama

November 1, 1927

Rehearing Denied March 6, 1928

Appeal from Circuit Court, Morgan County; O. Kyle, Judge.

Action in assumpsit by the Birmingham Electric Battery Company against Frank P. Lide. From a judgment for plaintiff defendant appeals. Affirmed.

A.J Harris, of Decatur, for appellant.

S.A Lynne, of Decatur, for appellee.

SAMFORD J.

The complaint was in two counts. (1) On account. (2) For goods etc., sold and delivered. By a series of pleas and demurrers we come to consider plea 5 and the ruling of the court in sustaining demurrer to this plea, which is as follows:

"Fifth. For further answer to the plaintiff's complaint, defendant says that in February, 1924, he entered into a contract with the plaintiff, whereby plaintiff agreed with the defendant that if the defendant would handle and sell the automobile batteries which the plaintiff was wholesaling in this territory, plaintiff would guarantee to him that he would double his sale of batteries over the year preceding. Defendant accepted said proposition and commenced the sale of the plaintiff's batteries to the exclusion of other makes which he had theretofore been selling.

"Defendant avers that the expiration of a year from said contract his sales had not doubled his sales for the year preceding, and defendant also avers that at that time he was under contract with the plaintiff whereby the plaintiff had sold to him the exclusive agency for the sale of Gabriel snubbers for automobiles in the vicinity of Decatur and Albany, Ala., and defendant was indebted unto the plaintiff in a small sum for the purchases of snubbers and batteries, which he had made from the plaintiff, and he claimed that the plaintiff was indebted to him under its contract in the sum of $647.35. A controversy arose between them respecting their mutual indebtedness, and their rights and relations were submitted to three arbitrators on, to wit, the 11th day of April, 1925. Defendant avers that it was the award of said arbitrators that the account due the plaintiff by the defendant should be credited with the sum of $100, and that the relation of the plaintiff and the defendant under said contracts should continue for another year, which was assented to by the plaintiff and the defendant.

"Defendant avers that immediately within, to wit, 10 days from the rendition of said award and the agreement of the parties that said contract should be continued for 1 year, the plaintiff breached its said contract and refused to furnish to the defendant any batteries or snubbers and made the contract awarding the agency for said batteries and snubbers with some third person in Albany, Ala. Defendant avers that by reason of the plaintiff's breach of its said contract, he lost his profits from the sale of said batteries and snubbers for, to wit, 1 year, which would have amounted to, to wit, the sum of $2,300. Defendant offered to recoup or set off his damages sustained from plaintiff's breach of said contract against the demand of the plaintiff, and prays for judgment for the excess."

Demurrer to this plea raises the question that the damages claimed are sepeculative, dependent on contingencies and conjecture, and this presents...