Long v. Addix

• Citation: 184 Ala. 236,63 So. 982
• Parties: LONG v. ADDIX et al.
• Decision Date: 12 November 1913
• Court: Supreme Court of Alabama

63 So. 982

184 Ala. 236

LONG v. ADDIX et al.

Supreme Court of Alabama

November 12, 1913

Rehearing Denied Dec. 12, 1913

Appeal from Circuit Court, Butler County; A.E. Gamble, Judge.

Assumpsit by Hines Addix and Wilhelm Corders, as partners against J Lee Long, as a member of the late firm of J.M. Gregory & Co. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

The first count is on an account.

"(2) Plaintiff claims of defendant the further sum of $960.35, as damages for the breach of contract entered into between plaintiff and J.M. Gregory & Co., a late partnership composed of J.M. Gregory and defendant, on, to wit, the 28th day of September, 1910, in and by which the said J.M. Gregory & Co. agreed to sell plaintiff 200 bales of Alabama cotton, quality good middling, at and for the price of 7.35 pence per American pounds gross weight, to be shipped in October, 1910 to Bremen, Bremen-Haven, Germany, and plaintiffs aver that the said partnership, failed to ship 100 bales of said cotton in accordance with the terms of their agreement, and that plaintiffs have been damaged in the sum as above set forth.

"(3) Plaintiff claims of defendant the further sum of $960.35 as damages for the breach of agreement in and by said J.M Gregory & Co., a late partnership composed of J.M. Gregory and defendant, sold to plaintiff on the terms of the printed rules of the Bremen Cotton Exchange, Bremen arbitration, 200 bales American cotton, quality good middling, good color, at and for the price of 7.35 pence per American pounds gross weight to be shipped per steamer (or steamers direct) and indirect from any place in the United States to Bremen Bremen-Haven, said shipment to be made in October, 1910; and plaintiffs aver that the said J.M. Gregory & Co. failed to ship 100 bales of said cotton in accordance with said agreement."

Demurrers 8 and 9 to count 3 are as follows:

"(8) Said counts fail to aver that plaintiffs were ready, willing, and able to pay for the 100 bales of cotton on delivery.

"(9) For aught that appears in said count, plaintiffs were unwilling, unable, and unready to pay for said cotton on delivery."

The second special plea sets up a modification of the contract by giving Gregory & Co. additional time to ship the 100 bales of cotton, to wit, March, 1911, and that in February, 1911, one Hans Schubeler, an agent of plaintiff acting within the line and scope of his agency and authority, stated to defendant that plaintiffs would not accept the 100 bales of cotton, and would not pay for same, and directed defendant not to ship the 100 bales of cotton, and that at the time plaintiffs agent made this statement and gave this order, defendant partnership had 100 bales of cotton, and was ready, able, and willing to fulfill that part of the contract.

The other pleas are a modification of plea 2, stated in varying phraseology. The replications are as follows:

"(A) That the only modification or abrogation of the contract sued on was an extension of time for the shipping of the cotton by J.M. Gregory & Co., and that they did not ship same within the said time.

"(B) That the only modification of the contract sued on was an extension of time for the shipment of the cotton by J.M. Gregory & Co., and that after the month of February, 1911, and during the month of March, 1911, J.M. Gregory & Co. agreed to ship the cotton, and failed to do so.

"(C) That after the month of February, 1911, and during the month of March, 1911, plaintiffs demanded of J.M. Gregory & Co. the 100 bales of cotton, which they agreed to ship under the contract sued on, and that after such demand J.M. Gregory & Co. agreed to ship the cotton, but failed to do so."

Lane & Lane and C.F. Winkler, all of Greenville, for appellant.

Powell & Hamilton, of Greenville, for appellees.

ANDERSON J.

"While a condition which qualifies or defeats the plaintiff's claim, being a condition subsequent, may be safely ignored by the plaintiff in his pleading, it may be stated, as a general rule, that performance by the plaintiff of a precedent condition must be averred in a complaint or declaration." "In lieu of allegations of performance the plaintiff may allege facts in excuse of performance. Thus it is sufficient to aver that the defendant disabled himself from performing his covenant to convey certain land by conveying it to a stranger, or that the defendant repudiated his contract, or that the defendant has prevented performance. An averment that the defendant has waived performance on the part of the plaintiff is also sufficient to dispense with an allegation of performance. The waiver must, however, clearly appear. If plaintiff intends to rely on facts which show a waiver of performance on the part of the defendant, he must plead such facts. He cannot plead performance and recover under proof of a waiver of performance." 4 Am. & ...