McCormick Harvesting Mach. Co. v. Lowe

• Decision Date: 09 May 1907
• Citation: 151 Ala. 313,44 So. 47
• Parties: MCCORMICK HARVESTING MACH. CO. v. LOWE.
• Court: Alabama Supreme Court

44 So. 47

151 Ala. 313

MCCORMICK HARVESTING MACH. CO. v. LOWE.

Supreme Court of Alabama

May 9, 1907

Appeal from Circuit Court, Cherokee County; W. W. Haralson, Judge.

Action by McCormick Harvesting Machine Company against H. W. Lowe. From a judgment granting a new trial, plaintiff appeals. Affirmed.

W. H Cather, for appellant.

H. H White and H. M. Reid, for appellee.

DOWDELL J.

This appeal is taken from a judgment of the court granting a new trial. The suit was brought upon several notes. The defendant, among other pleas, pleaded a failure of consideration. Issue was joined on the plea. The consideration of the note sued on was a binder machine sold by the plaintiff to the defendant and to be delivered at a future day. The undisputed evidence showed that the defendant never had possession of the machine. There was a conflict in the testimony as to where the machine was to be delivered to the defendant; the testimony of the defendant being that the machine was to be delivered at Leesburg, Ala., and that it was never so delivered, while the testimony on behalf of the plaintiff was that it was to be delivered at Cedar Bluff Ala., and that it was so delivered there, and, furthermore that the agent of the plaintiff company making the contract of sale with the defendant had no authority to contract for a delivery to the defendant at any other place than Cedar Bluff.

The rule is well settled by this court that the affirmative charge should never be given when there is a material conflict in the evidence, or when there is evidence affording an inference adverse to a right of recovery by the party requesting the charge. The evidence in the case before us showed without dispute that the machine, the consideration of the notes sued on, was at the time of sale to the defendant at Cedar Bluff. The headquarters of the plaintiff and its place of business was in Chicago, Ill., and the agent who made the contract of sale with the defendant was a general agent of the plaintiff. While the evidence showed that the agent had no authority to contract in the sale of machinery for shipment and delivery at any other place than Cedar Bluff, where Burnett & Bro. were the local agents of the plaintiff for the sale of machinery in that territory, and that the general agent so informed the defendant, yet it was further shown by the evidence that the machine, the consideration of the notes, had already been shipped out...