Lowy v. Rosengrant

• Citation: 71 So. 439,196 Ala. 337
• Decision Date: 20 January 1916
• Docket Number: 1 Div. 875
• Parties: LOWY et al. v. ROSENGRANT.
• Court: Alabama Supreme Court

71 So. 439

196 Ala. 337

LOWY et al. v. ROSENGRANT.

1 Div. 875

Supreme Court of Alabama

January 20, 1916

Rehearing Denied March 30, 1916

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Assumpsit by George M. Rosengrant against Max Lowy and another. From a judgment for plaintiff, defendants appeal. Affirmed.

The first, second, and third counts sufficiently appear. The fourth count is as follows:

Plaintiff claims of defendants the further sum of $7,000 for that, on the 30th day of April, 1914, plaintiff and defendants entered into a contract by which the plaintiff undertook to sell and defendants undertook to buy, a large quantity of red oak French claret staves, and a further large quantity of white oak French claret staves, the red oak staves to be delivered within a reasonable time after the execution of the contract, and the white oak staves to be delivered before August 1, 1914, and the plaintiff avers that the said red oak staves were delivered, and that the purchase money agreed to be paid therefor by the defendants exceeded the sum of $7,000; that said contract contained a further provision that the defendants should retain out of the purchase price for said red oak staves the sum of $7,000, to be held back by them until the delivery of all of the said 36-inch white oak French claret staves; and the plaintiff avers that thereafter, and before the said 1st day of August 1914, the defendants declined to receive said white oak staves, and, further, that the plaintiff is ready and willing and has offered to deliver said white oak staves, but the defendants have declined to receive and pay therefor; and the plaintiff further avers that the defendants, nevertheless refused to pay him said sum of $7,000 which was due upon the purchase money of the red oak staves delivered by the plaintiff to the defendant under said contract, wherefore the plaintiff sues.

The other facts sufficiently appear.

Webb McAlpine & Grove, of Mobile, for appellants.

Harry T. Smith & Caffey, of Mobile, for appellee.

THOMAS J.

The appellee, George M. Rosengrant, sued appellants, Max Lowy and B.A. Kobler, upon a complaint containing four counts: The first, upon account; second, for money had and received third, for merchandise, goods and chattels sold; and fourth, in assumpsit.

The first and second grounds of demurrer to the fourth count of the complaint are directed to the failure to allege the quantity of claret staves which the plaintiff undertook to sell and deliver to the defendants; and the third, sixth, and seventh grounds, to the failure of allegation that the plaintiff was ready, able, and willing, or that he offered to deliver the staves within the contract time limit; while the fourth and fifth grounds are that from the allegations of the count the defendants had the right to decline to receive the staves.

The suit was not for a breach of the contract of purchase, but was for the recovery of a balance of the purchase price of the staves delivered by appellee and accepted by appellants as a part performance of the contract. From the purchase price of the staves so delivered and accepted on the contract, appellants had retained the sum of $7,000 as a guarantee of future deliveries; and appellee's insistence is, that a substantial part of the contract being performed and accepted, a recovery may be had for the balance due him, on the common counts.

The fourth count alleges the making of the contract between plaintiff and defendants, for the delivery of a large quantity of claret staves, the red oak staves to be delivered within a reasonable time after the execution of the contract, and the white oak staves to be delivered before August 1, 1914; that red oak staves was delivered, and that said contract contained a further provision "that the defendants should retain out of the purchase price for said red oak staves the sum of $7,000, to be held back by them until the delivery of all of the said 36-inch white oak French claret staves"; and that thereafter, and before the said 1st day of August, 1914, the defendants declined to receive said white oak staves. It alleges, further, "that the plaintiff is ready and willing and has offered to deliver said white oak staves, but the defendants have declined to receive and pay therefor." Said count also avers that the purchase price for the red oak staves so delivered by plaintiff exceeded the sum of $7,000, and that the defendants refused to pay to plaintiff the sum of $7,000 which was due him upon the purchase price of the red oak staves so delivered, etc.

The right of a plaintiff to recover on a quantum meruit, for the balance due for the executed part of the contract, is well established. 2 Greenl.Ev. (16th Ed.) § 104; Thomas et al. v. Ellis et al., 4 Ala. 108; Merriweather v. Taylor, 15 Ala. 735; Hawkins v. Gilbert, 19 Ala. 54; Kirkland v. Oates, 25 Ala. 465; Davis v. Badders & Britt, 95 Ala. 348, 10 So. 422; Florence Gas, etc., Co. v. Hanby, Rec'r, 101 Ala. 15, 13 So. 343; Watson v. Kirby & Sons, 112 Ala. 436, 20 So. 624; Martin v. Massie, 127 Ala. 504, 29 So. 31; Aarnes v. Windham, 137 Ala. 513, 34 So. 816; Matthews v. Farrell, 140 Ala. 298, 37 So. 325; Higgins Mfg. Co. v. Pearson, 146 Ala. 528, 40 So. 579; Walstrom v. Oliver-Watts Const. Co., 161 Ala. 608, 50 So. 46; Smith v. Sharpe et al., 162 Ala. 433, 50 So. 381, 136 Am.St.Rep. 52; Dees v. Self Brothers, 165 Ala. 225, 51 So. 735; Montgomery County v. Pruett, 175 Ala. 391, 57 So. 823.

This right, however, is subject to recoupment for the resulting damages to the defendant (Ala. Chem. Co. v. Geiss, 143 Ala. 591, 39 So. 255) that may be "a matter of easy ascertainment," or that can be calculated with "any degree of certainty" and is "susceptible of measurement by a pecuniary standard." Stratton v. Fike, 166 Ala. 203, 209, 51 So. 874; Henderson-Boyd Lumber Co. v. Cook, 149 Ala. 226, 42 So. 838; Keeble v. Keeble, 85 Ala. 552, 5 So. 149; McPherson v. Robertson, 82 Ala. 459, 2 So. 333; Dees v. Self Bros., supra; Walshe Mfg. Co. v. Smith Lumber Co., 178 Ala. 472, 59 So. 455; 2 Page on Contr., § 1175.

There was no error of the court in overruling the demurrers to the fourth count of the complaint that sought recovery for the balance of the purchase money of the staves delivered by plaintiff and accepted by defendants.

Defendants' amended pleas 2, 3, and 4 met the objections pointed out by the plaintiff's demurrers sustained to pleas 2 and 3 as originally filed. There was no error in the ruling of the court.

The defendants' second and third pleas as amended averred that under the terms of the contract plaintiff bound himself to deliver the staves at Mobile; that it was possible for the delivery to have been made at Mobile by plaintiff before the expiration of the contract time, but that plaintiff neither tendered nor delivered the full amount of the staves contracted for, although defendants were ready, willing, and able to receive and pay for the staves in compliance with the terms of their contract; and that this nondelivery by plaintiff, within the terms of the contract, caused loss to them of a sum in excess of that sued for. And defendants claim recoupment for such damages.

The fourth plea was of like tenor, but alleged, in addition, an extension of the time in the contract for the delivery of a portion of the white oak staves, and "that plaintiff knew at the time of the execution of said contract of April 30, 1914, that said white oak French claret staves were being purchased for the Bordeaux market in France."

The fourth replication filed to pleas 2, 3, and 4 is as follows:

"And for further replication to this plaintiff says that after the said 1st day of August, and on, to wit, the 3d day of August, 1914, the defendant through his agent, notified the plaintiff in writing that he reserved the right to accept further deliveries under said contract after the expiration of the month of August, 1914, and thereby waived the time limit for such deliveries, and thereafter the plaintiff had a reasonable time within which to make deliveries to the defendant, and the defendant at no time since the month of August, 1914, notified the plaintiff that he demanded delivery within any fixed period."

The failure of a seller to deliver on time confers upon the buyer the option to either treat the contract as terminated, or waive the time limit and insist on the delivery, within a reasonable time. After the buyer has waived the time limit and insisted on delivery under the contract, he cannot put the seller in default without first giving notice of his desire to receive the purchased property with the offer of reasonable time for making the delivery after notice. Farmers' C.O. & T. Co. v. Ward & Son, 170 Ala. 491, 54 So. 513; J.M. Ackley & Co. v. Hunter-Benn & Co., 166 Ala. 295, 51 So. 964; Elliott v. Howison, 146 Ala. 568, 40 So. 1018; McFadden & Bro. v. Henderson et al., 128 Ala. 221, 29 So. 640; Stephenson v. Allison et

al., 123 Ala. 439, 26 So. 290.

When the seller fails to make deliveries, and time is of the essence of the contract, the buyer is under no duty to give notice of his rescission for such nondelivery under the contract. When, however, the buyer undertakes to give notice of his rescission of the contract, for nondelivery, he must rescind the whole contract unequivocally and without reservation. Elliott v. Howison, supra; Stephenson v. Allison et al., supra; Strauss v. Meertief, 64 Ala. 299, 38 Am.Rep. 8. Where the party to whom delivery has not been made within the time stipulated does not treat the contract as breached, but evidences to the other party thereto, a purpose to continue it in force, or to reserve to himself the right to insist on its further performance at some future time, he...